Preview
FILED
7/14/2022 11:22 AM
FELICIA PITRE
DISTRICT CLERK
DALLAS CO., TEXAS
Debra Clark DEPUTY
CAUSE NO. DC-17-08861
EYEMART EXPRESS, INC. § IN THE DISTRICT COURT OF
§
Plaintiff §
§
V. § 191ST JUDICIAL DISTRICT
§
THEOPHILUS TACKIE §
Defendant § DALLAS COUNTY, TX
JOINT MOTION FOR SUMMARY JUDGMENT
Plaintiff Eyemart Express, Inc. (Eyemart) and Plaintiff in Intervention Westchester Fire
Insurance Company (Westchester) files this Motion for Summary Judgment against Defendant
Theophilus Tackie (Defendant) and will respectfully show the Court as follows:
I.
In this lawsuit, Plaintiffs allege that the Defendant embezzled funds from his employer
Plaintiff Eyemart. Plaintiff in Intervention Westchester reimbursed Plaintiff Eyemart’s parent
company the sum of $238,999.69 for losses incurred by Eyemart,
II.
Attached hereto at Exhibit “A” is the Affidavit of Jason Shanks, General Counsel of Plaintiff
Eyemart, which proves up the following facts:
1) While employed by Eyemart Express LLC, the Defendant caused Eyemart Express LLC to make
ACH transfers of Eyemart Express LLC’s money to his personal bank account that he was not
authorized to receive totaling $254,559.69.
2) Attached to the Affidavit at Exhibit “1” is a true and correct itemization of ACH transfers the
Defendant caused Eyemart Express LLC to make to his personal bank account that he was not
authorized to receive.
3) While employed by Eyemart Express LLC, Defendant caused Eyemart Express LLC to purchase
gift cards that he then used for his own personal benefit totaling $34,440.00.
JOINT MOTION FOR SUMMARY JUDGMENT PAGE 1
4) Attached to the Affidavit at Exhibit “2” is a true and correct itemization of gift cards that the
Defendant caused Eyemart Express LLC to purchase, which he then used for the Defendant’s own
personal benefit.
5) Eyemart incurred expenses and costs totaling $50,000 in investigating and documenting the
losses it incurred as a result of the Defendant’s fraud and thefts.
6) Plaintiff in Intervention Westchester reimbursed Plaintiff Eyemart’s parent company the sum of
$238,999.69 for losses incurred by Eyemart, attached to the Affidavit at Exhibit “3” is a true and
correct copy of the Assignment Agreement which documents this payment and partially assigns of
Eyemart’s claim to Westchester, in the amount of the payment.
7) Plaintiff in Intervention Westchester also partially reimbursed Plaintiff Eyemart’s parent company
$25,000.00 for costs it incurred in documenting its losses caused by the Defendant, attached to the
Affidavit at Exhibit “4” is a true and correct copy of the Assignment, which documents this payment
and partially assignment of Eyemart’s claim to Westchester, in the amount of the payment.
III.
Defendant was indicted for these thefts from Eyemart in a related criminal case, State v.
Theophilus Tackie, Cause No. F17-22642-K, in the Criminal District Court #4 of Dallas County, TX
and Defendant Theophilus Tackie has pled guilty in the criminal case, attached hereto at Exhibit “B”
is a true and correct copy of the Indictment and Judgment against the Defendant in his criminal case.
IV.
Plaintiff in Intervention Westchester served Request for Admissions on the Defendant, see
affidavit of Michael P. Duray, attached hereto at Exhibit “C”. True and correct copies of the
Request for Admissions are attached at Exhibit “C-1". Defendant did not serve his Answers to the
Request for Admissions in the time allowed by law (30 days). The Admissions are deemed
conclusively established, pursuant to Rule 169, Texas Rules of Civil Procedure. Defendant has
therefore admitted to following facts:
REQUEST FOR ADMISSION NO. 1 While employed by Eyemart Express LLC, you caused
Eyemart Express LLC to make ACH transfers of Eyemart Express LLC’s money to your personal
bank account that you were not authorized to receive.
REQUEST FOR ADMISSION NO. 2 While employed by Eyemart Express LLC, you caused
JOINT MOTION FOR SUMMARY JUDGMENT PAGE 2
Eyemart Express LLC to make ACH transfers of Eyemart Express LLC’s money to your personal
bank account that you were not authorized to receive totaling $254,559.69.
REQUEST FOR ADMISSION NO. 3 Attached hereto at Exhibit “1” is a true and correct
itemization of ACH transfers you caused Eyemart Express LLC to make to your personal bank
account that you were not authorized to receive.
REQUEST FOR ADMISSION NO. 4 While employed by Eyemart Express LLC, you caused
Eyemart Express LLC to purchase gift cards that you then used for your own personal benefit.
REQUEST FOR ADMISSION NO. 5 While employed by Eyemart Express LLC, you caused
Eyemart Express LLC to purchase gift cards that you then used for your own personal benefit
totaling $34,440.00.
REQUEST FOR ADMISSION NO. 6 Attached hereto at Exhibit “2” is a true and correct
itemization of gift cards that your caused Eyemart Express LLC to purchase, which you then used
for your own personal benefit.
(Exhibits 1 and 2 attached to the Affidavits at Exhibit “A” and “C” are the same documents.)
V.
In summary, the summary judgment evidence establishes that:
1) Plaintiffs have proved up damages against Defendant totaling $338,999.69, as follows:
Unauthorized ACH transfers to personal account: $254,559.69
Unauthorized purchase of gift cards for personal use: $34,440.00
Costs incurred in documentation the losses: $50,000.00
TOTAL: $338,999.69
2) Defendant has admitted to the thefts and damages by his criminal plea of guilty in the related
case and in his deemed Admissions.
3) Plaintiff Eyemart has partially assigned its claims for its damages against Defendant to
Plaintiff in Intervention Westchester in the amount of $263,999.69.
There are no facts in dispute and Plaintiffs are entitled to a Judgment against the Defendant as a
matter of law.
JOINT MOTION FOR SUMMARY JUDGMENT PAGE 3
WHEREFORE PREMISES CONSIDERED, Plaintiff Eyemart Express, Inc. and Plaintiff in
Intervention Westchester Fire Insurance Company respectfully request that the Court award the
following relief:
1) Plaintiff Eyemart Express, Inc. have and recover judgment from Defendant Theophilus
Tackie, in the sum of $75,000.00, plus costs of court and post-judgment interest at the rate of
5.00% per annum, from the date of judgment until paid, for all of which let execution issue.
2) Plaintiff in Intervention Westchester Fire Insurance Company have and recover judgment
from Defendant Theophilus Tackie, in the sum of $263,999.69, plus costs of court and post-
judgment interest at the rate of 5.00% per annum, from the date of judgment until paid, for
all of which let execution issue.
3) Westchester Fire Insurance Company, as Subrogee of Plaintiff Eyemart Express, Inc., is the
rightful owner of the funds held by JPMorgan Chase and Navy Federal Credit Union, in the
name of the Defendant Theophilus Tackie.
4) JPMorgan Chase and Navy Federal Credit are directed to remit the funds from the
Theophilus Tackie accounts to Westchester Fire Insurance Company and that JPMorgan
Chase and Navy Federal Credit will have no liability to Theophilus Tackie for their actions
in turning over the funds.
5) Theophilus Tackie shall receive credit against the judgment entered against him, in the
amount of any funds received by Westchester Fire Insurance Company from JPMorgan
Chase and/or Navy Federal Credit.
6) Theophilus Tackie shall receive credit against the respective judgments entered against him,
in the amount of any restitution received by either Westchester Fire Insurance Company or
Eyemart Express, Inc. in the related criminal case, State v. Theophilus Tackie, Cause No.
JOINT MOTION FOR SUMMARY JUDGMENT PAGE 4
F17-22642-K, In the Criminal District Court #4 of Dallas County, TX.
Respectfully submitted,
/s/Michael P. Duray
______________________________
MICHAEL P. DURAY
State Bar No. 06275050
VERNON & DURAY, L.L.P.
PO Box 824127
Dallas, Texas 75382
Ph.: (214 221-3700
Fax: (214)221-3701
Email: mpduray@sbcglobal.net
ATTORNEY FOR THIRD PARTY
PLAINTIFF WESTCHESTER FIRE
INSURANCE COMPANY
/s/ David R. Schlottman (w/permission)
_____________________________
David R. Schlottman
State Bar No: 24083807
JACKSON WALKER L.L.P.
2323 Ross Ave., Suite 600
Dallas, TX 752091
Ph.: (214) 953-6000
Email: dschlottman@jw.com
ATTORNEY FOR PLAINTIFF
EYEMART EXPRESS LLC
JOINT MOTION FOR SUMMARY JUDGMENT PAGE 5
CERTIFICATE OF SERVICE
I hereby certify that a true and correct copy of the above and foregoing instrument has
been duly served upon all attorneys of record, and on Defendant Theophilus Tackie, via E-File
on this 14th day of July 2022.
/s/Michael P. Duray
_________________________________
MICHAEL P. DURAY
JOINT MOTION FOR SUMMARY JUDGMENT PAGE 6
EXHIBIT "A"
EYEMART EXPESS
Schedule of ACH's
Routing Account
ACHName Beneficiary Bank Number Number Date Amount
Rochester Navy Credit Union 256074974 7028500010 2/1/2017 $ 14,368.86
Rochester Navy Credit Union 256074974 7028500010 2/27/2017 14,368.86
Rochester Navy Credit Union 256074974 7028500010 3/27/2017 14,368.86
Rochester Navy Credit Union 256074974 7028500010 4/27/2017 14,368.86
Rochester Navy Credit Union 256074974 7028500010 5/26/2017 14,368.86
Rochester Navy Credit Union 256074974 7028500010 6/26/2017 14,368.86
Total Rochester $ 86,213.16
Gemini Chase Bank 111000614 679772629 2/1/2017 $ 12,232.93
Gemini Chase Bank 111000614 679772629 2/27/2017 12,232.93
Gemini Chase Bank 111000614 679772629 3/27/2017 12,232.93
Gemini Chase Bank 111000614 679772629 4/27/2017 12,232.93
Gemini Chase Bank 111000614 679772629 5/26/2017 12,232.93
Gemini Chase Bank 111000614 679772629 6/26/2017 12,232.93
Gemini Chase Bank 111000614 679772629 7/26/2017 12,232.93
Total Gemini $ 85,630.51
Weingart Chase Bank 111000614 679772629 1/30/2017 $ 13,792.67
Weingart Chase Bank 111000614 679772629 2/27/2017 13,792.67
Weingart Chase Bank 111000614 679772629 3/27/2017 13,792.67
Weingart Chase Bank 111000614 679772629 4/27/2017 13,792.67
Weingart Chase Bank 111000614 679772629 5/26/2017 13,792.67
Weingart Chase Bank 111000614 679772629 6/26/2017 13,792.67
Total Weingart $ 82,756.02
TOTAL $ 254,599.69
EXHIBIT "1"
EYEMART EXRESS
Reconciliation of Gift Cards
Order Date Ordered By Confirmation Number Amount Theft Amount Confirmed Difference
1 10/5/2016 BRETB660 GF161005092622382976 $ 4,900.00 $ $ 4,900.00 $
2 10/11/2016 TACKIET GF161011090746194147 5,600.00 5,600.00
3 12/27/2016 TACKIET ~F161~~7!43503734Q54 2,750.00 250.00 2,500.00
4 1/5/2017 TACKIET GF170105152630860226 17,565.00 4,000.00 13,565.00
5 2/1/2017 TACKIET GF170201!2~939~!3879 1,675.00 1,675.00
6 2/7/2017 TACKIET GF170207121152263838 450.00 450.00
7 2/7/2017 TACKIET GF170207121323612963 500.00 500.00
8 2/15/2017 TACKIET GF170215141~56868148 385.00 385.00
9 2/20/2017 TACKIET GF170220Q83713072042 3,305.00 1,000.00 2,305.00
10 3/2/2017 TACKIET GF170302122019834108 6,820.00 460.00 6,360.00
11 3/7/2017 TACKIET GF170307123305555522 5,900.00 5,900.00
12 3/10/2017 TACKIET GF170310152916838575 140.00 140.00
13 3/17/2017 TACKIET GF170317115600344239 2,235.00 500.00 1,735.00
14 3/22/2017 TACKIET GF170322083108802135 2,425.00 500.00 1,925.00
15 3/27/2017 TACKIET GF170327135Q01504362 1,070.00 880.00 190.00
16 3/27/2017 TACKIET GF170327142821682171 300.00 300.00
17 4/4/2017 TACKIET GF170404144510196412 1,000.00 500.00 500.00
18 4/6/2017 TACKIET GF170406090235129841 14,500.00 4,000.00 10,500.00
19 4/21/2017 TACKIET GF170421120114344550 5,000.00 5,000.00
20 4/25/2017 TACKIET GF170425091041280027 6,750.00 450.00 6,300.00
21 5/2/2017 TACKIET GF170502083823870353 5,775.00 3,000.00 2,775.00
22 5/11/2017 TACKIET GF170511141822383167 500.00 500.00
23 5/12/2017 TACKIET GF170512101755922249 5,100.00 5,100.00
24 5/18/2017 TACKIET GF17Q5l8l5l354816161 750.00 500.00 250.00
25 5/23/2017 TACKIET GF170523084454842129 150.00 150.00
26 5/25/2017 TACKIET GF170525073558340882 1,750.00 1,750.00
27 6/20/2017 TACKIET ~El7Q§~Ql03820~41~0~ 2,125.00 2,125.00
28 6/26/'2.017 TACKIET GF170626093232192128 8,000.00 8,000.00
29 7/7/2017 TACKIET GF17070712325687~490 10,850.00 10,850.00
30 7/13/2017 TACKIET §Fl7Q7131~322~86~~23 2,750.00 2,750.00
31 7/18/2017 TACKIET GF170718154645957335 250.00 250.00
$ 121,270.00 $ 34,440.00 $ 86,830.00 $
EXHIBIT '2'
EXHIBIT "3"
EXHIBIT "4"
ii i i
2
The State of Texas vs. THEOPHILUS TACKIE CDC4
DOB: 3/27/1982 Sex: Male Race: Black
SID No. GJ Witness:
AIS No. <#CID#>
C Offense LD Statute Agency TRN TRS NCIC Code
1- F2 PC TX0571000 23990201
THEFT PROP >=$150K<$300K 31.03(e)(6
)(A)
INDICiMENT NO.: F1722642
IN THE NAME AND BY THE AUTHORITY OF THE STATE OF TEXAS:
The Grand Jury of Dallas County, State of Texas, duly organized at the July Term, A.D., 2018 of the 194th Judicial
District Court for said County, upon its oath do present in and to said Court at said term,
That THEOPHILUS TACKIE , hereinafter called Defendant, on or about and between the 30th day of January,
2017 and the 26th day of July, 2017 in the County of Dallas, State of Texas, did then and there pursuant to one
scheme and continuing course of conduct, unlawfully appropriate property, to-wit: MONEY, by acquiring and
exercising control over the said property, without the effective consent of EYEMART EXPRESS, the owner of the
said property, with the intent to deprive the said owner of the said property, and the aggregate value of the said
property, appropriated was at least $150,000 but less than $300,000,
o
v
C
H
Against the peace and dignity of the State.
Foreman of the Grand Jury
Page 1 of 1
EXHIBIT B
EXHIBIT "C"
CAUSE NO. DC-17-08861
EYEMART EXPRESS, INC. § IN THE DISTRICT COURT OF
§
Plaintiff §
§
V. § 191ST JUDICIAL DISTRICT
§
THEOPHILUS TACKIE §
Defendant § DALLAS COUNTY, TX
INTERVENOR PLAINTIFF WESTCHESTER FIRE INSURANCE COMPANY’S
REQUEST FOR DISCLOSURES, FIRST SET OF INTERROGATORIES, REQUEST
FOR PRODUCTION and REQUEST FOR ADMISSIONS TO DEFENDANT
TO: Defendant Theophilus Tackie, pro se, 6920 Sarria Grand Prairie, Texas 75054.
I.
REQUEST FOR DISCLOSURES
Pursuant to Rule 194, Defendant Theophilus Tackie is requested to disclose, within thirty
(30) days of service on this Request, the information or material described in Rule 194.2, Texas
Rules of Civil Procedure.
II.
FIRST SET OF INTERROGATORIES
Defendant Theophilus Tackie is each hereby directed to answer the Written Interrogatories
attached hereto as Exhibit “A” on the basis of all information available to him, separately and
fully, in writing under oath, in accordance with Rule 197 of the Texas Rules of Civil Procedure,
having the answers signed by the person making them and serving a true copy of the answers on
the undersigned attorney thirty (30) days after service hereof. These Interrogatories are intended
as continuing interrogatories requiring Defendant to answer by supplemental answers, if
Defendant obtains information that shows that the original answer was incorrect when made, is no
longer true or Defendant has identified a witness whose name, address and telephone number, a
INTERVENOR PLAINTIFF’S REQUEST FOR DISCLOSURES, FIRST SET OF INTERROGATORIES, REQUEST
FOR PRODUCTION and REQUEST FOR ADMISSIONS TO DEFENDANTS PAGE 1
EXHIBIT "1"
substance of testimony has been described in response to appropriate Interrogatories. In
answering these Interrogatories, furnish such information as is available to you, not merely such
information as is of Defendant’s own knowledge. This request includes knowledge of
Defendant’s agents, representatives, and, unless privileged, its attorneys. Identify the individual
or individuals providing the information for the answer to each Interrogatory so that they may be
served with a subpoena, if necessary. If any of the following Interrogatories cannot be answered
in full, please answer to the extent possible, and state specifically all reasons for its inability to
answer the remainder, setting forth what information and knowledge it has with respect to the
unanswered portion.
II.
FIRST REQUEST FOR PRODUCTION
Plaintiff serves this request for production on Defendant Theophilus Tackie as allowed by
Rule 196, of the Texas Rules of Civil Procedure. Plaintiff requests that the documents listed in
Exhibit “A” be delivered to the office of its counsel, Michael P. Duray, PO Box 824127, Dallas,
Texas 752382 or be made available for inspection and copying at a mutually convenient location
not later than thirty (30) days after the service hereof. Defendant must produce all requested
documents as they are kept in the ordinary course of business or organized and labeled to
correspond with the categories in each request.
III.
FIRST REQUEST FOR ADMISSIONS
Defendant Theophilus Tackie is directed to answer in accordance with Rule 198 of the
Texas Rules of Civil Procedure, the Requests for Admissions attached at Exhibit “A”. The
Requests are made pursuant to Rule 198, and each of the matters shall be deemed admitted unless
responses are delivered to Plaintiff’s attorney (30) days after delivery to Defendant. In the
INTERVENOR PLAINTIFF’S REQUEST FOR DISCLOSURES, FIRST SET OF INTERROGATORIES, REQUEST
FOR PRODUCTION and REQUEST FOR ADMISSIONS TO DEFENDANTS PAGE 2
responses, Defendant should either admit or deny the truth of the matter requested. If Defendant
cannot admit or deny the matter requested for admission, Defendant should set forth in detail why
he/she cannot truthfully admit or deny those matters.
DEFINITIONS
1. "You" or "your" shall mean Defendant Theophilus Tackie.
2. “ACH” shall mean electronic bank account transfers and/or Automated Clearing
House transfers.
2. "Document(s) or Documentation" means all written, typed, or printed matter and all
magnetic, electronic, or other records or documentation of any kind or description in your
actual possession, custody, or control, including those in the possession, custody, or
control of any and all present or former directors, officers, employees, consultants,
accountants, attorneys, or other agents, whether or not prepared by you, that constitute or
contain matters relevant to the subject matter of the action. "Document(s)" includes, but is
not limited to, the following: letters, reports, charts, diagrams, correspondence,
telegrams, memoranda, notes, records, minutes, contracts, agreements, records or
notations of telephone or personal conversations or conferences, interoffice
communications, e-mail, microfilm, bulletins, circulars, pamphlets, photographs, faxes,
invoices, tape recordings, computer printouts, drafts, resumes, logs, worksheets, book
keeping records, financial statements, profit and loss statements, loans, cash advances,
IOU’s, checks, deposit slips, vouchers, credit card statements, receipts, purchase orders,
bills of lading, bank statements, bank signature cards, leases, corporate records and/or
articles of incorporation.
Respectfully submitted,
/s/ Michael P. Duray
___________________________
MICHAEL P. DURAY
State Bar No. 06275050
VERNON & DURAY, L.L.P.
Po Box 824127
Dallas, Texas 75382
Ph.: (214 221-3700
Fax: (214)221-3701
Email: mpduray@sbcglobal.net
INTERVENOR PLAINTIFF’S REQUEST FOR DISCLOSURES, FIRST SET OF INTERROGATORIES, REQUEST
FOR PRODUCTION and REQUEST FOR ADMISSIONS TO DEFENDANTS PAGE 3
ATTORNEY FOR INTERVENOR PLAINTIFF
WESTCHESTER FIRE INSURANCE
COMPANY
CERTIFICATE OF SERVICE
I certify that a true and correct copy of the foregoing pleading was served on all attorneys
of record and Theophilus Tackie, pro se, phil.tackie@gmail.com, via E-File, on this 18st day of
January 2022.
/s/ Michael P. Duray
_____________________________
Michael P. Duray
INTERVENOR PLAINTIFF’S REQUEST FOR DISCLOSURES, FIRST SET OF INTERROGATORIES, REQUEST
FOR PRODUCTION and REQUEST FOR ADMISSIONS TO DEFENDANTS PAGE 4
EXHIBIT “A”
FIRST REQUEST FOR PRODUCTION
REQUEST FOR PRODUCTION NO. 1: All documentation relating to ACH transfers that
you caused Eyemart Express LLC to make to your personal account, while you were an
employee of Eyemart Express, LLC.
RESPONSE:
REQUEST FOR PRODUCTION NO. 2: All documentation relating to the ACH transfers
itemized in the attached Exhibit “1”
RESPONSE:
REQUEST FOR PRODUCTION NO. 3: Your bank statements for the bank account(s) that
received ACH transfers from Eyemart Express LLC for the period of time January 2017 until
present.
RESPONSE:
REQUEST FOR PRODUCTION NO. 4: All documentation relating to gift cards that you
caused Eyemart Express LLC to purchase, that you then used for your own personal benefit,
while you were an employee of Eyemart Express, LLC.
RESPONSE:
REQUEST FOR PRODUCTION NO. 5: All documentation relating to the Gift Cards under
the column entitled “Theft Amount”, in the attached Exhibit “2”.
RESPONSE:
FIRSTSET OF INTERROGATORIES AND REQUEST FOR ADMISSIONS
REQUEST FOR ADMISSION NO. 1 While employed by Eyemart Express LLC, you caused
Eyemart Express LLC to make ACH transfers of Eyemart Express LLC’s money to your
personal bank account that you were not authorized to receive.
RESPONSE:
INTERROGATORY NO. 1: If you did not admit Request for Admission No. 1. Explain why
ACH transfers of Eyemart Express LLC’s money were made to your personal bank account.
INTERVENOR PLAINTIFF’S FIRST SET OF INTERROGATORIES, REQUEST FOR PRODUCTION
and REQUEST FOR ADMISSIONS TO DEFENDANT PAGE 5
ANSWER:
REQUEST FOR ADMISSION NO. 2 While employed by Eyemart Express LLC, you caused
Eyemart Express LLC to make ACH transfers of Eyemart Express LLC’s money to your
personal bank account that you were not authorized to receive totaling $254,559.69.
RESPONSE:
REQUEST FOR ADMISSION NO. 3 Attached hereto at Exhibit “1” is a true and correct
itemization of ACH transfers you caused Eyemart Express LLC to make to your personal bank
account that you were not authorized to receive.
RESPONSE:
INTERROGATORY NO. 2: If you did not admit Request for Admission No. 3, explain the
reason for each ACH transfer of Eyemart Express LLC’s money to your personal bank account
listed in the attached Exhibit “1’.
ANSWER:
REQUEST FOR ADMISSION NO. 4 While employed by Eyemart Express LLC, you caused
Eyemart Express LLC to purchase gift cards that you then used for your own personal benefit.
RESPONSE:
REQUEST FOR ADMISSION NO. 5 While employed by Eyemart Express LLC, you caused
Eyemart Express LLC to purchase gift cards that you then used for your own personal benefit
totaling $34,440.00.
RESPONSE:
REQUEST FOR ADMISSION NO. 6 Attached hereto at Exhibit “2” is a true and correct
itemization of gift cards that your caused Eyemart Express LLC to purchase, which you then
used for your own personal benefit.
INTERROGATORY NO. 3: If you did not admit Request for Admission No. 6, identify who
received each of the gift cards listed under the column entitled “Theft Amount”, in the attached
Exhibit “2”.
ANSWER:
INTERVENOR PLAINTIFF’S FIRST SET OF INTERROGATORIES, REQUEST FOR PRODUCTION
and REQUEST FOR ADMISSIONS TO DEFENDANT PAGE 6
EYEMART EXPESS
Schedule of ACH's
Routing Account
ACHName Beneficiary Bank Number Number Date Amount
Rochester Navy Credit Union 256074974 7028500010 2/1/2017 $ 14,368.86
Rochester Navy Credit Union 256074974 7028500010 2/27/2017 14,368.86
Rochester Navy Credit Union 256074974 7028500010 3/27/2017 14,368.86
Rochester Navy Credit Union 256074974 7028500010 4/27/2017 14,368.86
Rochester Navy Credit Union 256074974 7028500010 5/26/2017 14,368.86
Rochester Navy Credit Union 256074974 7028500010 6/26/2017 14,368.86
Total Rochester $ 86,213.16
Gemini Chase Bank 111000614 679772629 2/1/2017 $ 12,232.93
Gemini Chase Bank 111000614 679772629 2/27/2017 12,232.93
Gemini Chase Bank 111000614 679772629 3/27/2017 12,232.93
Gemini Chase Bank 111000614 679772629 4/27/2017 12,232.93
Gemini Chase Bank 111000614 679772629 5/26/2017 12,232.93
Gemini Chase Bank 111000614 679772629 6/26/2017 12,232.93
Gemini Chase Bank 111000614 679772629 7/26/2017 12,232.93
Total Gemini $ 85,630.51
Weingart Chase Bank 111000614 679772629 1/30/2017 $ 13,792.67
Weingart Chase Bank 111000614 679772629 2/27/2017 13,792.67
Weingart Chase Bank 111000614 679772629 3/27/2017 13,792.67
Weingart Chase Bank 111000614 679772629 4/27/2017 13,792.67
Weingart Chase Bank 111000614 679772629 5/26/2017 13,792.67
Weingart Chase Bank 111000614 679772629 6/26/2017 13,792.67
Total Weingart $ 82,756.02
TOTAL $ 254,599.69
EXHIBIT" f "
EYEMART EXRESS
Reconciliation of Gift Cards
Order Date Ordered By Confirmation Number Amount Theft Amount Confirmed Difference
1 10/5/2016 BRETB660 GF161005092622382976 $ 4,900.00 $ $ 4,900.00 $
2 10/11/2016 TACKIET GF161011090746194147 5,600.00 5,600.00
3 12/27/2016 TACKIET ~F161~~7!43503734Q54 2,750.00 250.00 2,500.00
4 1/5/2017 TACKIET GF170105152630860226 17,565.00 4,000.00 13,565.00
5 2/1/2017 TACKIET GF170201!2~939~!3879 1,675.00 1,675.00
6 2/7/2017 TACKIET GF170207121152263838 450.00 450.00
7 2/7/2017 TACKIET GF170207121323612963 500.00 500.00
8 2/15/2017 TACKIET GF170215141~56868148 385.00 385.00
9 2/20/2017 TACKIET GF170220Q83713072042 3,305.00 1,000.00 2,305.00
10 3/2/2017 TACKIET GF170302122019834108 6,820.00 460.00 6,360.00
11 3/7/2017 TACKIET GF170307123305555522 5,900.00 5,900.00
12 3/10/2017 TACKIET GF170310152916838575 140.00 140.00
13 3/17/2017 TACKIET GF170317115600344239 2,235.00 500.00 1,735.00
14 3/22/2017 TACKIET GF170322083108802135 2,425.00 500.00 1,925.00
15 3/27/2017 TACKIET GF170327135Q01504362 1,070.00 880.00 190.00
16 3/27/2017 TACKIET GF170327142821682171 300.00 300.00
17 4/4/2017 TACKIET GF170404144510196412 1,000.00 500.00 500.00
18 4/6/2017 TACKIET GF170406090235129841 14,500.00 4,000.00 10,500.00
19 4/21/2017 TACKIET GF170421120114344550 5,000.00 5,000.00
20 4/25/2017 TACKIET GF170425091041280027 6,750.00 450.00 6,300.00
21 5/2/2017 TACKIET GF170502083823870353 5,775.00 3,000.00 2,775.00
22 5/11/2017 TACKIET GF170511141822383167 500.00 500.00
23 5/12/2017 TACKIET GF170512101755922249 5,100.00 5,100.00
24 5/18/2017 TACKIET GF17Q5l8l5l354816161 750.00 500.00 250.00
25 5/23/2017 TACKIET GF170523084454842129 150.00 150.00
26 5/25/2017 TACKIET GF170525073558340882 1,750.00 1,750.00
27 6/20/2017 TACKIET ~El7Q§~Ql03820~41~0~ 2,125.00 2,125.00
28 6/26/'2.017 TACKIET GF170626093232192128 8,000.00 8,000.00
29 7/7/2017 TACKIET GF17070712325687~490 10,850.00 10,850.00
30 7/13/2017 TACKIET §Fl7Q7131~322~86~~23 2,750.00 2,750.00
31 7/18/2017 TACKIET GF170718154645957335 250.00 250.00
$ 121,270.00 $ 34,440.00 $ 86,830.00 $
EXHIBIT"~"
Automated Certificate of eService
This automated certificate of service was created by the efiling system.
The filer served this document via email generated by the efiling system
on the date and to the persons listed below. The rules governing
certificates of service have not changed. Filers must still provide a
certificate of service that complies with all applicable rules.
Michael Duray
Bar No. 06275050
mpduray@sbcglobal.net
Envelope ID: 66316868
Status as of 7/14/2022 12:16 PM CST
Associated Case Party: THEOPHILUS TACKIE
Name BarNumber Email TimestampSubmitted Status
Theophilus Tackie phil.tackie@gmail.com 7/14/2022 11:22:28 AM SENT
Case Contacts
Name BarNumber Email TimestampSubmitted Status
Brian HOates boates@jw.com 7/14/2022 11:22:28 AM SENT
David Schlottman dschlottman@jw.com 7/14/2022 11:22:28 AM SENT
Erin Shea eshea@jw.com 7/14/2022 11:22:28 AM SENT
KERRY KALLIE KERRY.KALLIE@DALLASCOUNTY.ORG 7/14/2022 11:22:28 AM SENT
Preview
FILED 7/14/2022 11:22 AM FELICIA PITRE DISTRICT CLERK DALLAS CO., TEXAS Debra Clark DEPUTY CAUSE NO. DC-17-08861 EYEMART EXPRESS, INC. § IN THE DISTRICT COURT OF § Plaintiff § § V. § 191ST JUDICIAL DISTRICT § THEOPHILUS TACKIE § Defendant § DALLAS COUNTY, TX JOINT MOTION FOR SUMMARY JUDGMENT Plaintiff Eyemart Express, Inc. (Eyemart) and Plaintiff in Intervention Westchester Fire Insurance Company (Westchester) files this Motion for Summary Judgment against Defendant Theophilus Tackie (Defendant) and will respectfully show the Court as follows: I. In this lawsuit, Plaintiffs allege that the Defendant embezzled funds from his employer Plaintiff Eyemart. Plaintiff in Intervention Westchester reimbursed Plaintiff Eyemart’s parent company the sum of $238,999.69 for losses incurred by Eyemart, II. Attached hereto at Exhibit “A” is the Affidavit of Jason Shanks, General Counsel of Plaintiff Eyemart, which proves up the following facts: 1) While employed by Eyemart Express LLC, the Defendant caused Eyemart Express LLC to make ACH transfers of Eyemart Express LLC’s money to his personal bank account that he was not authorized to receive totaling $254,559.69. 2) Attached to the Affidavit at Exhibit “1” is a true and correct itemization of ACH transfers the Defendant caused Eyemart Express LLC to make to his personal bank account that he was not authorized to receive. 3) While employed by Eyemart Express LLC, Defendant caused Eyemart Express LLC to purchase gift cards that he then used for his own personal benefit totaling $34,440.00. JOINT MOTION FOR SUMMARY JUDGMENT PAGE 1 4) Attached to the Affidavit at Exhibit “2” is a true and correct itemization of gift cards that the Defendant caused Eyemart Express LLC to purchase, which he then used for the Defendant’s own personal benefit. 5) Eyemart incurred expenses and costs totaling $50,000 in investigating and documenting the losses it incurred as a result of the Defendant’s fraud and thefts. 6) Plaintiff in Intervention Westchester reimbursed Plaintiff Eyemart’s parent company the sum of $238,999.69 for losses incurred by Eyemart, attached to the Affidavit at Exhibit “3” is a true and correct copy of the Assignment Agreement which documents this payment and partially assigns of Eyemart’s claim to Westchester, in the amount of the payment. 7) Plaintiff in Intervention Westchester also partially reimbursed Plaintiff Eyemart’s parent company $25,000.00 for costs it incurred in documenting its losses caused by the Defendant, attached to the Affidavit at Exhibit “4” is a true and correct copy of the Assignment, which documents this payment and partially assignment of Eyemart’s claim to Westchester, in the amount of the payment. III. Defendant was indicted for these thefts from Eyemart in a related criminal case, State v. Theophilus Tackie, Cause No. F17-22642-K, in the Criminal District Court #4 of Dallas County, TX and Defendant Theophilus Tackie has pled guilty in the criminal case, attached hereto at Exhibit “B” is a true and correct copy of the Indictment and Judgment against the Defendant in his criminal case. IV. Plaintiff in Intervention Westchester served Request for Admissions on the Defendant, see affidavit of Michael P. Duray, attached hereto at Exhibit “C”. True and correct copies of the Request for Admissions are attached at Exhibit “C-1". Defendant did not serve his Answers to the Request for Admissions in the time allowed by law (30 days). The Admissions are deemed conclusively established, pursuant to Rule 169, Texas Rules of Civil Procedure. Defendant has therefore admitted to following facts: REQUEST FOR ADMISSION NO. 1 While employed by Eyemart Express LLC, you caused Eyemart Express LLC to make ACH transfers of Eyemart Express LLC’s money to your personal bank account that you were not authorized to receive. REQUEST FOR ADMISSION NO. 2 While employed by Eyemart Express LLC, you caused JOINT MOTION FOR SUMMARY JUDGMENT PAGE 2 Eyemart Express LLC to make ACH transfers of Eyemart Express LLC’s money to your personal bank account that you were not authorized to receive totaling $254,559.69. REQUEST FOR ADMISSION NO. 3 Attached hereto at Exhibit “1” is a true and correct itemization of ACH transfers you caused Eyemart Express LLC to make to your personal bank account that you were not authorized to receive. REQUEST FOR ADMISSION NO. 4 While employed by Eyemart Express LLC, you caused Eyemart Express LLC to purchase gift cards that you then used for your own personal benefit. REQUEST FOR ADMISSION NO. 5 While employed by Eyemart Express LLC, you caused Eyemart Express LLC to purchase gift cards that you then used for your own personal benefit totaling $34,440.00. REQUEST FOR ADMISSION NO. 6 Attached hereto at Exhibit “2” is a true and correct itemization of gift cards that your caused Eyemart Express LLC to purchase, which you then used for your own personal benefit. (Exhibits 1 and 2 attached to the Affidavits at Exhibit “A” and “C” are the same documents.) V. In summary, the summary judgment evidence establishes that: 1) Plaintiffs have proved up damages against Defendant totaling $338,999.69, as follows: Unauthorized ACH transfers to personal account: $254,559.69 Unauthorized purchase of gift cards for personal use: $34,440.00 Costs incurred in documentation the losses: $50,000.00 TOTAL: $338,999.69 2) Defendant has admitted to the thefts and damages by his criminal plea of guilty in the related case and in his deemed Admissions. 3) Plaintiff Eyemart has partially assigned its claims for its damages against Defendant to Plaintiff in Intervention Westchester in the amount of $263,999.69. There are no facts in dispute and Plaintiffs are entitled to a Judgment against the Defendant as a matter of law. JOINT MOTION FOR SUMMARY JUDGMENT PAGE 3 WHEREFORE PREMISES CONSIDERED, Plaintiff Eyemart Express, Inc. and Plaintiff in Intervention Westchester Fire Insurance Company respectfully request that the Court award the following relief: 1) Plaintiff Eyemart Express, Inc. have and recover judgment from Defendant Theophilus Tackie, in the sum of $75,000.00, plus costs of court and post-judgment interest at the rate of 5.00% per annum, from the date of judgment until paid, for all of which let execution issue. 2) Plaintiff in Intervention Westchester Fire Insurance Company have and recover judgment from Defendant Theophilus Tackie, in the sum of $263,999.69, plus costs of court and post- judgment interest at the rate of 5.00% per annum, from the date of judgment until paid, for all of which let execution issue. 3) Westchester Fire Insurance Company, as Subrogee of Plaintiff Eyemart Express, Inc., is the rightful owner of the funds held by JPMorgan Chase and Navy Federal Credit Union, in the name of the Defendant Theophilus Tackie. 4) JPMorgan Chase and Navy Federal Credit are directed to remit the funds from the Theophilus Tackie accounts to Westchester Fire Insurance Company and that JPMorgan Chase and Navy Federal Credit will have no liability to Theophilus Tackie for their actions in turning over the funds. 5) Theophilus Tackie shall receive credit against the judgment entered against him, in the amount of any funds received by Westchester Fire Insurance Company from JPMorgan Chase and/or Navy Federal Credit. 6) Theophilus Tackie shall receive credit against the respective judgments entered against him, in the amount of any restitution received by either Westchester Fire Insurance Company or Eyemart Express, Inc. in the related criminal case, State v. Theophilus Tackie, Cause No. JOINT MOTION FOR SUMMARY JUDGMENT PAGE 4 F17-22642-K, In the Criminal District Court #4 of Dallas County, TX. Respectfully submitted, /s/Michael P. Duray ______________________________ MICHAEL P. DURAY State Bar No. 06275050 VERNON & DURAY, L.L.P. PO Box 824127 Dallas, Texas 75382 Ph.: (214 221-3700 Fax: (214)221-3701 Email: mpduray@sbcglobal.net ATTORNEY FOR THIRD PARTY PLAINTIFF WESTCHESTER FIRE INSURANCE COMPANY /s/ David R. Schlottman (w/permission) _____________________________ David R. Schlottman State Bar No: 24083807 JACKSON WALKER L.L.P. 2323 Ross Ave., Suite 600 Dallas, TX 752091 Ph.: (214) 953-6000 Email: dschlottman@jw.com ATTORNEY FOR PLAINTIFF EYEMART EXPRESS LLC JOINT MOTION FOR SUMMARY JUDGMENT PAGE 5 CERTIFICATE OF SERVICE I hereby certify that a true and correct copy of the above and foregoing instrument has been duly served upon all attorneys of record, and on Defendant Theophilus Tackie, via E-File on this 14th day of July 2022. /s/Michael P. Duray _________________________________ MICHAEL P. DURAY JOINT MOTION FOR SUMMARY JUDGMENT PAGE 6 EXHIBIT "A" EYEMART EXPESS Schedule of ACH's Routing Account ACHName Beneficiary Bank Number Number Date Amount Rochester Navy Credit Union 256074974 7028500010 2/1/2017 $ 14,368.86 Rochester Navy Credit Union 256074974 7028500010 2/27/2017 14,368.86 Rochester Navy Credit Union 256074974 7028500010 3/27/2017 14,368.86 Rochester Navy Credit Union 256074974 7028500010 4/27/2017 14,368.86 Rochester Navy Credit Union 256074974 7028500010 5/26/2017 14,368.86 Rochester Navy Credit Union 256074974 7028500010 6/26/2017 14,368.86 Total Rochester $ 86,213.16 Gemini Chase Bank 111000614 679772629 2/1/2017 $ 12,232.93 Gemini Chase Bank 111000614 679772629 2/27/2017 12,232.93 Gemini Chase Bank 111000614 679772629 3/27/2017 12,232.93 Gemini Chase Bank 111000614 679772629 4/27/2017 12,232.93 Gemini Chase Bank 111000614 679772629 5/26/2017 12,232.93 Gemini Chase Bank 111000614 679772629 6/26/2017 12,232.93 Gemini Chase Bank 111000614 679772629 7/26/2017 12,232.93 Total Gemini $ 85,630.51 Weingart Chase Bank 111000614 679772629 1/30/2017 $ 13,792.67 Weingart Chase Bank 111000614 679772629 2/27/2017 13,792.67 Weingart Chase Bank 111000614 679772629 3/27/2017 13,792.67 Weingart Chase Bank 111000614 679772629 4/27/2017 13,792.67 Weingart Chase Bank 111000614 679772629 5/26/2017 13,792.67 Weingart Chase Bank 111000614 679772629 6/26/2017 13,792.67 Total Weingart $ 82,756.02 TOTAL $ 254,599.69 EXHIBIT "1" EYEMART EXRESS Reconciliation of Gift Cards Order Date Ordered By Confirmation Number Amount Theft Amount Confirmed Difference 1 10/5/2016 BRETB660 GF161005092622382976 $ 4,900.00 $ $ 4,900.00 $ 2 10/11/2016 TACKIET GF161011090746194147 5,600.00 5,600.00 3 12/27/2016 TACKIET ~F161~~7!43503734Q54 2,750.00 250.00 2,500.00 4 1/5/2017 TACKIET GF170105152630860226 17,565.00 4,000.00 13,565.00 5 2/1/2017 TACKIET GF170201!2~939~!3879 1,675.00 1,675.00 6 2/7/2017 TACKIET GF170207121152263838 450.00 450.00 7 2/7/2017 TACKIET GF170207121323612963 500.00 500.00 8 2/15/2017 TACKIET GF170215141~56868148 385.00 385.00 9 2/20/2017 TACKIET GF170220Q83713072042 3,305.00 1,000.00 2,305.00 10 3/2/2017 TACKIET GF170302122019834108 6,820.00 460.00 6,360.00 11 3/7/2017 TACKIET GF170307123305555522 5,900.00 5,900.00 12 3/10/2017 TACKIET GF170310152916838575 140.00 140.00 13 3/17/2017 TACKIET GF170317115600344239 2,235.00 500.00 1,735.00 14 3/22/2017 TACKIET GF170322083108802135 2,425.00 500.00 1,925.00 15 3/27/2017 TACKIET GF170327135Q01504362 1,070.00 880.00 190.00 16 3/27/2017 TACKIET GF170327142821682171 300.00 300.00 17 4/4/2017 TACKIET GF170404144510196412 1,000.00 500.00 500.00 18 4/6/2017 TACKIET GF170406090235129841 14,500.00 4,000.00 10,500.00 19 4/21/2017 TACKIET GF170421120114344550 5,000.00 5,000.00 20 4/25/2017 TACKIET GF170425091041280027 6,750.00 450.00 6,300.00 21 5/2/2017 TACKIET GF170502083823870353 5,775.00 3,000.00 2,775.00 22 5/11/2017 TACKIET GF170511141822383167 500.00 500.00 23 5/12/2017 TACKIET GF170512101755922249 5,100.00 5,100.00 24 5/18/2017 TACKIET GF17Q5l8l5l354816161 750.00 500.00 250.00 25 5/23/2017 TACKIET GF170523084454842129 150.00 150.00 26 5/25/2017 TACKIET GF170525073558340882 1,750.00 1,750.00 27 6/20/2017 TACKIET ~El7Q§~Ql03820~41~0~ 2,125.00 2,125.00 28 6/26/'2.017 TACKIET GF170626093232192128 8,000.00 8,000.00 29 7/7/2017 TACKIET GF17070712325687~490 10,850.00 10,850.00 30 7/13/2017 TACKIET §Fl7Q7131~322~86~~23 2,750.00 2,750.00 31 7/18/2017 TACKIET GF170718154645957335 250.00 250.00 $ 121,270.00 $ 34,440.00 $ 86,830.00 $ EXHIBIT '2' EXHIBIT "3" EXHIBIT "4" ii i i 2 The State of Texas vs. THEOPHILUS TACKIE CDC4 DOB: 3/27/1982 Sex: Male Race: Black SID No. GJ Witness: AIS No. <#CID#> C Offense LD Statute Agency TRN TRS NCIC Code 1- F2 PC TX0571000 23990201 THEFT PROP >=$150K<$300K 31.03(e)(6 )(A) INDICiMENT NO.: F1722642 IN THE NAME AND BY THE AUTHORITY OF THE STATE OF TEXAS: The Grand Jury of Dallas County, State of Texas, duly organized at the July Term, A.D., 2018 of the 194th Judicial District Court for said County, upon its oath do present in and to said Court at said term, That THEOPHILUS TACKIE , hereinafter called Defendant, on or about and between the 30th day of January, 2017 and the 26th day of July, 2017 in the County of Dallas, State of Texas, did then and there pursuant to one scheme and continuing course of conduct, unlawfully appropriate property, to-wit: MONEY, by acquiring and exercising control over the said property, without the effective consent of EYEMART EXPRESS, the owner of the said property, with the intent to deprive the said owner of the said property, and the aggregate value of the said property, appropriated was at least $150,000 but less than $300,000, o v C H Against the peace and dignity of the State. Foreman of the Grand Jury Page 1 of 1 EXHIBIT B EXHIBIT "C" CAUSE NO. DC-17-08861 EYEMART EXPRESS, INC. § IN THE DISTRICT COURT OF § Plaintiff § § V. § 191ST JUDICIAL DISTRICT § THEOPHILUS TACKIE § Defendant § DALLAS COUNTY, TX INTERVENOR PLAINTIFF WESTCHESTER FIRE INSURANCE COMPANY’S REQUEST FOR DISCLOSURES, FIRST SET OF INTERROGATORIES, REQUEST FOR PRODUCTION and REQUEST FOR ADMISSIONS TO DEFENDANT TO: Defendant Theophilus Tackie, pro se, 6920 Sarria Grand Prairie, Texas 75054. I. REQUEST FOR DISCLOSURES Pursuant to Rule 194, Defendant Theophilus Tackie is requested to disclose, within thirty (30) days of service on this Request, the information or material described in Rule 194.2, Texas Rules of Civil Procedure. II. FIRST SET OF INTERROGATORIES Defendant Theophilus Tackie is each hereby directed to answer the Written Interrogatories attached hereto as Exhibit “A” on the basis of all information available to him, separately and fully, in writing under oath, in accordance with Rule 197 of the Texas Rules of Civil Procedure, having the answers signed by the person making them and serving a true copy of the answers on the undersigned attorney thirty (30) days after service hereof. These Interrogatories are intended as continuing interrogatories requiring Defendant to answer by supplemental answers, if Defendant obtains information that shows that the original answer was incorrect when made, is no longer true or Defendant has identified a witness whose name, address and telephone number, a INTERVENOR PLAINTIFF’S REQUEST FOR DISCLOSURES, FIRST SET OF INTERROGATORIES, REQUEST FOR PRODUCTION and REQUEST FOR ADMISSIONS TO DEFENDANTS PAGE 1 EXHIBIT "1" substance of testimony has been described in response to appropriate Interrogatories. In answering these Interrogatories, furnish such information as is available to you, not merely such information as is of Defendant’s own knowledge. This request includes knowledge of Defendant’s agents, representatives, and, unless privileged, its attorneys. Identify the individual or individuals providing the information for the answer to each Interrogatory so that they may be served with a subpoena, if necessary. If any of the following Interrogatories cannot be answered in full, please answer to the extent possible, and state specifically all reasons for its inability to answer the remainder, setting forth what information and knowledge it has with respect to the unanswered portion. II. FIRST REQUEST FOR PRODUCTION Plaintiff serves this request for production on Defendant Theophilus Tackie as allowed by Rule 196, of the Texas Rules of Civil Procedure. Plaintiff requests that the documents listed in Exhibit “A” be delivered to the office of its counsel, Michael P. Duray, PO Box 824127, Dallas, Texas 752382 or be made available for inspection and copying at a mutually convenient location not later than thirty (30) days after the service hereof. Defendant must produce all requested documents as they are kept in the ordinary course of business or organized and labeled to correspond with the categories in each request. III. FIRST REQUEST FOR ADMISSIONS Defendant Theophilus Tackie is directed to answer in accordance with Rule 198 of the Texas Rules of Civil Procedure, the Requests for Admissions attached at Exhibit “A”. The Requests are made pursuant to Rule 198, and each of the matters shall be deemed admitted unless responses are delivered to Plaintiff’s attorney (30) days after delivery to Defendant. In the INTERVENOR PLAINTIFF’S REQUEST FOR DISCLOSURES, FIRST SET OF INTERROGATORIES, REQUEST FOR PRODUCTION and REQUEST FOR ADMISSIONS TO DEFENDANTS PAGE 2 responses, Defendant should either admit or deny the truth of the matter requested. If Defendant cannot admit or deny the matter requested for admission, Defendant should set forth in detail why he/she cannot truthfully admit or deny those matters. DEFINITIONS 1. "You" or "your" shall mean Defendant Theophilus Tackie. 2. “ACH” shall mean electronic bank account transfers and/or Automated Clearing House transfers. 2. "Document(s) or Documentation" means all written, typed, or printed matter and all magnetic, electronic, or other records or documentation of any kind or description in your actual possession, custody, or control, including those in the possession, custody, or control of any and all present or former directors, officers, employees, consultants, accountants, attorneys, or other agents, whether or not prepared by you, that constitute or contain matters relevant to the subject matter of the action. "Document(s)" includes, but is not limited to, the following: letters, reports, charts, diagrams, correspondence, telegrams, memoranda, notes, records, minutes, contracts, agreements, records or notations of telephone or personal conversations or conferences, interoffice communications, e-mail, microfilm, bulletins, circulars, pamphlets, photographs, faxes, invoices, tape recordings, computer printouts, drafts, resumes, logs, worksheets, book keeping records, financial statements, profit and loss statements, loans, cash advances, IOU’s, checks, deposit slips, vouchers, credit card statements, receipts, purchase orders, bills of lading, bank statements, bank signature cards, leases, corporate records and/or articles of incorporation. Respectfully submitted, /s/ Michael P. Duray ___________________________ MICHAEL P. DURAY State Bar No. 06275050 VERNON & DURAY, L.L.P. Po Box 824127 Dallas, Texas 75382 Ph.: (214 221-3700 Fax: (214)221-3701 Email: mpduray@sbcglobal.net INTERVENOR PLAINTIFF’S REQUEST FOR DISCLOSURES, FIRST SET OF INTERROGATORIES, REQUEST FOR PRODUCTION and REQUEST FOR ADMISSIONS TO DEFENDANTS PAGE 3 ATTORNEY FOR INTERVENOR PLAINTIFF WESTCHESTER FIRE INSURANCE COMPANY CERTIFICATE OF SERVICE I certify that a true and correct copy of the foregoing pleading was served on all attorneys of record and Theophilus Tackie, pro se, phil.tackie@gmail.com, via E-File, on this 18st day of January 2022. /s/ Michael P. Duray _____________________________ Michael P. Duray INTERVENOR PLAINTIFF’S REQUEST FOR DISCLOSURES, FIRST SET OF INTERROGATORIES, REQUEST FOR PRODUCTION and REQUEST FOR ADMISSIONS TO DEFENDANTS PAGE 4 EXHIBIT “A” FIRST REQUEST FOR PRODUCTION REQUEST FOR PRODUCTION NO. 1: All documentation relating to ACH transfers that you caused Eyemart Express LLC to make to your personal account, while you were an employee of Eyemart Express, LLC. RESPONSE: REQUEST FOR PRODUCTION NO. 2: All documentation relating to the ACH transfers itemized in the attached Exhibit “1” RESPONSE: REQUEST FOR PRODUCTION NO. 3: Your bank statements for the bank account(s) that received ACH transfers from Eyemart Express LLC for the period of time January 2017 until present. RESPONSE: REQUEST FOR PRODUCTION NO. 4: All documentation relating to gift cards that you caused Eyemart Express LLC to purchase, that you then used for your own personal benefit, while you were an employee of Eyemart Express, LLC. RESPONSE: REQUEST FOR PRODUCTION NO. 5: All documentation relating to the Gift Cards under the column entitled “Theft Amount”, in the attached Exhibit “2”. RESPONSE: FIRSTSET OF INTERROGATORIES AND REQUEST FOR ADMISSIONS REQUEST FOR ADMISSION NO. 1 While employed by Eyemart Express LLC, you caused Eyemart Express LLC to make ACH transfers of Eyemart Express LLC’s money to your personal bank account that you were not authorized to receive. RESPONSE: INTERROGATORY NO. 1: If you did not admit Request for Admission No. 1. Explain why ACH transfers of Eyemart Express LLC’s money were made to your personal bank account. INTERVENOR PLAINTIFF’S FIRST SET OF INTERROGATORIES, REQUEST FOR PRODUCTION and REQUEST FOR ADMISSIONS TO DEFENDANT PAGE 5 ANSWER: REQUEST FOR ADMISSION NO. 2 While employed by Eyemart Express LLC, you caused Eyemart Express LLC to make ACH transfers of Eyemart Express LLC’s money to your personal bank account that you were not authorized to receive totaling $254,559.69. RESPONSE: REQUEST FOR ADMISSION NO. 3 Attached hereto at Exhibit “1” is a true and correct itemization of ACH transfers you caused Eyemart Express LLC to make to your personal bank account that you were not authorized to receive. RESPONSE: INTERROGATORY NO. 2: If you did not admit Request for Admission No. 3, explain the reason for each ACH transfer of Eyemart Express LLC’s money to your personal bank account listed in the attached Exhibit “1’. ANSWER: REQUEST FOR ADMISSION NO. 4 While employed by Eyemart Express LLC, you caused Eyemart Express LLC to purchase gift cards that you then used for your own personal benefit. RESPONSE: REQUEST FOR ADMISSION NO. 5 While employed by Eyemart Express LLC, you caused Eyemart Express LLC to purchase gift cards that you then used for your own personal benefit totaling $34,440.00. RESPONSE: REQUEST FOR ADMISSION NO. 6 Attached hereto at Exhibit “2” is a true and correct itemization of gift cards that your caused Eyemart Express LLC to purchase, which you then used for your own personal benefit. INTERROGATORY NO. 3: If you did not admit Request for Admission No. 6, identify who received each of the gift cards listed under the column entitled “Theft Amount”, in the attached Exhibit “2”. ANSWER: INTERVENOR PLAINTIFF’S FIRST SET OF INTERROGATORIES, REQUEST FOR PRODUCTION and REQUEST FOR ADMISSIONS TO DEFENDANT PAGE 6 EYEMART EXPESS Schedule of ACH's Routing Account ACHName Beneficiary Bank Number Number Date Amount Rochester Navy Credit Union 256074974 7028500010 2/1/2017 $ 14,368.86 Rochester Navy Credit Union 256074974 7028500010 2/27/2017 14,368.86 Rochester Navy Credit Union 256074974 7028500010 3/27/2017 14,368.86 Rochester Navy Credit Union 256074974 7028500010 4/27/2017 14,368.86 Rochester Navy Credit Union 256074974 7028500010 5/26/2017 14,368.86 Rochester Navy Credit Union 256074974 7028500010 6/26/2017 14,368.86 Total Rochester $ 86,213.16 Gemini Chase Bank 111000614 679772629 2/1/2017 $ 12,232.93 Gemini Chase Bank 111000614 679772629 2/27/2017 12,232.93 Gemini Chase Bank 111000614 679772629 3/27/2017 12,232.93 Gemini Chase Bank 111000614 679772629 4/27/2017 12,232.93 Gemini Chase Bank 111000614 679772629 5/26/2017 12,232.93 Gemini Chase Bank 111000614 679772629 6/26/2017 12,232.93 Gemini Chase Bank 111000614 679772629 7/26/2017 12,232.93 Total Gemini $ 85,630.51 Weingart Chase Bank 111000614 679772629 1/30/2017 $ 13,792.67 Weingart Chase Bank 111000614 679772629 2/27/2017 13,792.67 Weingart Chase Bank 111000614 679772629 3/27/2017 13,792.67 Weingart Chase Bank 111000614 679772629 4/27/2017 13,792.67 Weingart Chase Bank 111000614 679772629 5/26/2017 13,792.67 Weingart Chase Bank 111000614 679772629 6/26/2017 13,792.67 Total Weingart $ 82,756.02 TOTAL $ 254,599.69 EXHIBIT" f " EYEMART EXRESS Reconciliation of Gift Cards Order Date Ordered By Confirmation Number Amount Theft Amount Confirmed Difference 1 10/5/2016 BRETB660 GF161005092622382976 $ 4,900.00 $ $ 4,900.00 $ 2 10/11/2016 TACKIET GF161011090746194147 5,600.00 5,600.00 3 12/27/2016 TACKIET ~F161~~7!43503734Q54 2,750.00 250.00 2,500.00 4 1/5/2017 TACKIET GF170105152630860226 17,565.00 4,000.00 13,565.00 5 2/1/2017 TACKIET GF170201!2~939~!3879 1,675.00 1,675.00 6 2/7/2017 TACKIET GF170207121152263838 450.00 450.00 7 2/7/2017 TACKIET GF170207121323612963 500.00 500.00 8 2/15/2017 TACKIET GF170215141~56868148 385.00 385.00 9 2/20/2017 TACKIET GF170220Q83713072042 3,305.00 1,000.00 2,305.00 10 3/2/2017 TACKIET GF170302122019834108 6,820.00 460.00 6,360.00 11 3/7/2017 TACKIET GF170307123305555522 5,900.00 5,900.00 12 3/10/2017 TACKIET GF170310152916838575 140.00 140.00 13 3/17/2017 TACKIET GF170317115600344239 2,235.00 500.00 1,735.00 14 3/22/2017 TACKIET GF170322083108802135 2,425.00 500.00 1,925.00 15 3/27/2017 TACKIET GF170327135Q01504362 1,070.00 880.00 190.00 16 3/27/2017 TACKIET GF170327142821682171 300.00 300.00 17 4/4/2017 TACKIET GF170404144510196412 1,000.00 500.00 500.00 18 4/6/2017 TACKIET GF170406090235129841 14,500.00 4,000.00 10,500.00 19 4/21/2017 TACKIET GF170421120114344550 5,000.00 5,000.00 20 4/25/2017 TACKIET GF170425091041280027 6,750.00 450.00 6,300.00 21 5/2/2017 TACKIET GF170502083823870353 5,775.00 3,000.00 2,775.00 22 5/11/2017 TACKIET GF170511141822383167 500.00 500.00 23 5/12/2017 TACKIET GF170512101755922249 5,100.00 5,100.00 24 5/18/2017 TACKIET GF17Q5l8l5l354816161 750.00 500.00 250.00 25 5/23/2017 TACKIET GF170523084454842129 150.00 150.00 26 5/25/2017 TACKIET GF170525073558340882 1,750.00 1,750.00 27 6/20/2017 TACKIET ~El7Q§~Ql03820~41~0~ 2,125.00 2,125.00 28 6/26/'2.017 TACKIET GF170626093232192128 8,000.00 8,000.00 29 7/7/2017 TACKIET GF17070712325687~490 10,850.00 10,850.00 30 7/13/2017 TACKIET §Fl7Q7131~322~86~~23 2,750.00 2,750.00 31 7/18/2017 TACKIET GF170718154645957335 250.00 250.00 $ 121,270.00 $ 34,440.00 $ 86,830.00 $ EXHIBIT"~" Automated Certificate of eService This automated certificate of service was created by the efiling system. The filer served this document via email generated by the efiling system on the date and to the persons listed below. The rules governing certificates of service have not changed. Filers must still provide a certificate of service that complies with all applicable rules. Michael Duray Bar No. 06275050 mpduray@sbcglobal.net Envelope ID: 66316868 Status as of 7/14/2022 12:16 PM CST Associated Case Party: THEOPHILUS TACKIE Name BarNumber Email TimestampSubmitted Status Theophilus Tackie phil.tackie@gmail.com 7/14/2022 11:22:28 AM SENT Case Contacts Name BarNumber Email TimestampSubmitted Status Brian HOates boates@jw.com 7/14/2022 11:22:28 AM SENT David Schlottman dschlottman@jw.com 7/14/2022 11:22:28 AM SENT Erin Shea eshea@jw.com 7/14/2022 11:22:28 AM SENT KERRY KALLIE KERRY.KALLIE@DALLASCOUNTY.ORG 7/14/2022 11:22:28 AM SENT