On November 16, 2001 a
Motion-Secondary
was filed
involving a dispute between
Educated Systems & Solutions Inc,
Education Systems & Solutions Inc,
Microcheck Solutions Inc,
Microcheck Systems Inc,
Smith, Mike,
and
Campbell, Alex,
Cms Technologies,
Cms Technology,
Educated Solutions Inc,
Frost Bank Texas,
Hayden, Jim,
Jabecki, Jason,
Jablecki, Jason,
Michoice Technology Systems Inc,
Murphy, Scott,
Smith, Mike,
Zigrossi, Chirs,
Zigrossi, Chris,
Zigrossi & Murphy L L C,
Manning, John D,
for INJUNCTION
in the District Court of Harris County.
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CAUSE NUMBER 2004-59790
MICROCHECK SYSTEMS, INC. AND § IN THE DISTRICT COURT OF
MICROCHECK SOLUTIONS, INC.
Plaintiffs,
Vs. HARRIS COUNTY, TEXAS
ZIGROSSI & MURPHY, L.L.C.,
Individually and d/b/a EDUCATED
SOLUTIONS; ET AL.
Defendants 125TH JUDICIAL DISTRICT
ORDER
On this day came to be heard the Motion in Limine of Plaintiffs
MicroCheck Systems, Inc., MicroCheck Solutions, Inc. and John D. Manning.
The Court, after considering the motion, response and arguments of counsel, is
of the opinion that said motion should be granted. It is, therefore,
Ordered that Plaintiffs’ Motion in Limine is granted as to numbers:
1) From mentioning, referring to, or asking questions regarding
the financial status or ownership of assets or other
properties or business or investments of Third-Party
Defendant, John D. Manning or any entity owned or
otherwise affiliated with Manning for the reason that such
collateral financial matters are not relevant to any material
issue in this lawsuit and the only purpose would be to
prejudice and inflame the jury. TEX. R. Evip. 401-403.
Granted
Denied
Granted as Modified
2) From referencing the anticipated testimony of a witness who
is absent, unavailable, or, otherwise not called to testify at
the trial of this cause. Tex. R. Evip. 401, 403, 801, 802.
Granted
Denied
Granted as Modified
3) From referencing any or all objections made by MicroCheck
and Manning in their answers to interrogatories, responses
to requests for production, at hearings or depositions, as
well as any objections made by the in the above discovery
proceedings as well as referencing MicroCheck and
Manning’s refusal to answer questions to which they made
objections. The fact that MicroCheck and Manning made or
filed objections and refused to answer questions until such
objections were brought before the Court for a ruling on their
propriety is meaningless, irrelevant, and immaterial to any
issue in this case and, accordingly, such matters would be
referred to only for the purpose of prejudicing the jury
against the Plaintiffs Tex. R. Evip. 401-403.
Granted
Denied
Granted as Modified
4) From mentioning, suggesting, or inquiring about any
lawsuits or other types of claims, accusations, charges,
inquiries, or investigations, which have in the past been filed
or made or conducted or presently pending, by or against
MicroCheck and Manning, or any entity owned or otherwise
affiliated with Manning, including, but not limited to
Manning’s divorce, case entitled, State of Colorado, ex rel.
Ken Salazar, Attorney General v. US Direct, Inc., et al., and/or
Cause No. 05-CV-140685, JMC Homes, Inc. v. Don Lee
Overley, et al., for the reason that such matters would be
wholly irrelevant to any issue in this case and would be
mentioned to the jury solely for the purpose of prejudicing
the jury by the existence of collateral matters, the merits of
which would not possibly be litigated in this lawsuit.
The existence of any such suits, claims or accusations would
be meaningless, irrelevant, immaterial to any issue in this
case, and the allegations of claimants in such suits would be
hearsay and, accordingly, such matters would be referred to
only for the purpose of prejudicing the jury rather than
bringing forth admissible evidence. TEX. R. Evip. 401, 403,
801, 802.
Granted
Denied
Granted as Modified
5) From eliciting any evidence or statement regarding the net
worth of Third Party Defendant, John D. Manning or any
entity owned or otherwise affiliated with Manning, their
financial circumstances, or any similar information. The net
worth of those named above is not relevant. TEX. R. EvID.
401-403.
Granted
Denied
Granted as Modified
6) From allowing counsel to request a witness to affirm or
disaffirm, or agree or disagree with, the testimony of another
witness as this is an improper practice, which requires a
witness to base his testimony on the hearsay of what counsel
characterizes the testimony of another witness to be,
requires the witness to answer a question of which the
witness has no_ personal knowledge, and constitutes
impermissible impeachment because the witness is asked to
pass on the truthfulness or untruthfulness, accuracy or
inaccuracy, of another witness. Moreover, such testimony
would exceed the boundaries of Rule 701 of the Texas Rules
of Evidence as the testimony of a witness in the form of
opinion must be based on the perception of that witness,
and in addition, must be helpful to a clear understanding of
his testimony or the determination of a fact issue.
Granted
Denied
Granted as Modified
7) From referencing this Motion in Limine or referring thereto,
be it argument or otherwise, that Plaintiffs have sought to
exclude any matter bearing on the issues in this case or the
rights of the parties to this lawsuit.
Granted
Denied
Granted as Modified
8) From making any reference or reading into the record any ex
parte statement or report from any person not present in the
courtroom that cannot be cross-examined by Plaintiffs.
Granted
Denied
Granted as Modified
9) Any statement which tends to inform the jury of the effect of
its answers to questions or any reference to whether a
certain question is a plaintiff’s issue or a defendant’s issue.
Granted
Denied
Granted as Modified
10) Any attempt by Defendants’ attorneys to seek or request the
attorneys for Plaintiffs to produce documents, to stipulate to
any facts, or to make any sort of agreement in the presence
of the jury. Such inquiry would only have the effect of
placing Plaintiffs in an awkward and embarrassing situation
before the jury. A refusal on the part of Plaintiffs would
serve to generate prejudice, even though Plaintiffs may be
within their legal rights in making the refusal.
Granted
Denied
Granted as Modified
11) Any attempt to put members of the jury into any of the
parties’ shoes.
Granted
Denied
Granted as Modified
12) Any reference to the claims of privilege raised by Plaintiffs
during discovery.
Granted
Denied
Granted as Modified
13) Any opinion testimony or other evidence regarding
specialized training, education, or experience, from anyone
other than a qualified expert whose testimony is relevant and
reliable. TEx. R. Evip. 701, 702.
Granted
Denied
Granted as Modified
14) The status of the law license of Stan Nix.
Granted
Denied
Granted as Modified
15) The status of the law license of Michael Harsemma.
Granted
Denied
Granted as Modified
16) Any reference to the conduct of the parties, their
representatives or their attorneys in the litigation of this
lawsuit as such reference would be meaningless, irrelevant,
and immaterial to any issue in this case and, accordingly,
such reference would only be for the purpose of prejudicing
the jury against the plaintiffs. Tex. R. Evip. 401-403.
Granted
Denied
Granted as Modified
17) Any statement or allegation that Defendants have been
libeled or slandered until this Court has made a preliminary
determination that the alleged statement is legally capable of
being construed in a defamatory manner.
Granted
Denied
Granted as Modified
18) Any testimony of Les Mignerey, whether by deposition or
otherwise, as to the value, functionality, or reliability of
MicroCheck's source code. Mr. Mignerey is not an expert in
computer programming and the basis for any such
testimony is limited to hearsay complaints from unnamed
third parties. TEx. R. Evip. 702, 802.
Granted
Denied
Granted as Modified
SIGNED this day of , 2012.
JUDGE PRESIDING
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CAUSE NUMBER 2004-59790 MICROCHECK SYSTEMS, INC. AND § IN THE DISTRICT COURT OF MICROCHECK SOLUTIONS, INC. Plaintiffs, Vs. HARRIS COUNTY, TEXAS ZIGROSSI & MURPHY, L.L.C., Individually and d/b/a EDUCATED SOLUTIONS; ET AL. Defendants 125TH JUDICIAL DISTRICT ORDER On this day came to be heard the Motion in Limine of Plaintiffs MicroCheck Systems, Inc., MicroCheck Solutions, Inc. and John D. Manning. The Court, after considering the motion, response and arguments of counsel, is of the opinion that said motion should be granted. It is, therefore, Ordered that Plaintiffs’ Motion in Limine is granted as to numbers: 1) From mentioning, referring to, or asking questions regarding the financial status or ownership of assets or other properties or business or investments of Third-Party Defendant, John D. Manning or any entity owned or otherwise affiliated with Manning for the reason that such collateral financial matters are not relevant to any material issue in this lawsuit and the only purpose would be to prejudice and inflame the jury. TEX. R. Evip. 401-403. Granted Denied Granted as Modified 2) From referencing the anticipated testimony of a witness who is absent, unavailable, or, otherwise not called to testify at the trial of this cause. Tex. R. Evip. 401, 403, 801, 802. Granted Denied Granted as Modified 3) From referencing any or all objections made by MicroCheck and Manning in their answers to interrogatories, responses to requests for production, at hearings or depositions, as well as any objections made by the in the above discovery proceedings as well as referencing MicroCheck and Manning’s refusal to answer questions to which they made objections. The fact that MicroCheck and Manning made or filed objections and refused to answer questions until such objections were brought before the Court for a ruling on their propriety is meaningless, irrelevant, and immaterial to any issue in this case and, accordingly, such matters would be referred to only for the purpose of prejudicing the jury against the Plaintiffs Tex. R. Evip. 401-403. Granted Denied Granted as Modified 4) From mentioning, suggesting, or inquiring about any lawsuits or other types of claims, accusations, charges, inquiries, or investigations, which have in the past been filed or made or conducted or presently pending, by or against MicroCheck and Manning, or any entity owned or otherwise affiliated with Manning, including, but not limited to Manning’s divorce, case entitled, State of Colorado, ex rel. Ken Salazar, Attorney General v. US Direct, Inc., et al., and/or Cause No. 05-CV-140685, JMC Homes, Inc. v. Don Lee Overley, et al., for the reason that such matters would be wholly irrelevant to any issue in this case and would be mentioned to the jury solely for the purpose of prejudicing the jury by the existence of collateral matters, the merits of which would not possibly be litigated in this lawsuit. The existence of any such suits, claims or accusations would be meaningless, irrelevant, immaterial to any issue in this case, and the allegations of claimants in such suits would be hearsay and, accordingly, such matters would be referred to only for the purpose of prejudicing the jury rather than bringing forth admissible evidence. TEX. R. Evip. 401, 403, 801, 802. Granted Denied Granted as Modified 5) From eliciting any evidence or statement regarding the net worth of Third Party Defendant, John D. Manning or any entity owned or otherwise affiliated with Manning, their financial circumstances, or any similar information. The net worth of those named above is not relevant. TEX. R. EvID. 401-403. Granted Denied Granted as Modified 6) From allowing counsel to request a witness to affirm or disaffirm, or agree or disagree with, the testimony of another witness as this is an improper practice, which requires a witness to base his testimony on the hearsay of what counsel characterizes the testimony of another witness to be, requires the witness to answer a question of which the witness has no_ personal knowledge, and constitutes impermissible impeachment because the witness is asked to pass on the truthfulness or untruthfulness, accuracy or inaccuracy, of another witness. Moreover, such testimony would exceed the boundaries of Rule 701 of the Texas Rules of Evidence as the testimony of a witness in the form of opinion must be based on the perception of that witness, and in addition, must be helpful to a clear understanding of his testimony or the determination of a fact issue. Granted Denied Granted as Modified 7) From referencing this Motion in Limine or referring thereto, be it argument or otherwise, that Plaintiffs have sought to exclude any matter bearing on the issues in this case or the rights of the parties to this lawsuit. Granted Denied Granted as Modified 8) From making any reference or reading into the record any ex parte statement or report from any person not present in the courtroom that cannot be cross-examined by Plaintiffs. Granted Denied Granted as Modified 9) Any statement which tends to inform the jury of the effect of its answers to questions or any reference to whether a certain question is a plaintiff’s issue or a defendant’s issue. Granted Denied Granted as Modified 10) Any attempt by Defendants’ attorneys to seek or request the attorneys for Plaintiffs to produce documents, to stipulate to any facts, or to make any sort of agreement in the presence of the jury. Such inquiry would only have the effect of placing Plaintiffs in an awkward and embarrassing situation before the jury. A refusal on the part of Plaintiffs would serve to generate prejudice, even though Plaintiffs may be within their legal rights in making the refusal. Granted Denied Granted as Modified 11) Any attempt to put members of the jury into any of the parties’ shoes. Granted Denied Granted as Modified 12) Any reference to the claims of privilege raised by Plaintiffs during discovery. Granted Denied Granted as Modified 13) Any opinion testimony or other evidence regarding specialized training, education, or experience, from anyone other than a qualified expert whose testimony is relevant and reliable. TEx. R. Evip. 701, 702. Granted Denied Granted as Modified 14) The status of the law license of Stan Nix. Granted Denied Granted as Modified 15) The status of the law license of Michael Harsemma. Granted Denied Granted as Modified 16) Any reference to the conduct of the parties, their representatives or their attorneys in the litigation of this lawsuit as such reference would be meaningless, irrelevant, and immaterial to any issue in this case and, accordingly, such reference would only be for the purpose of prejudicing the jury against the plaintiffs. Tex. R. Evip. 401-403. Granted Denied Granted as Modified 17) Any statement or allegation that Defendants have been libeled or slandered until this Court has made a preliminary determination that the alleged statement is legally capable of being construed in a defamatory manner. Granted Denied Granted as Modified 18) Any testimony of Les Mignerey, whether by deposition or otherwise, as to the value, functionality, or reliability of MicroCheck's source code. Mr. Mignerey is not an expert in computer programming and the basis for any such testimony is limited to hearsay complaints from unnamed third parties. TEx. R. Evip. 702, 802. Granted Denied Granted as Modified SIGNED this day of , 2012. JUDGE PRESIDING