Preview
Filed 12 April 13 P12:43
Chris Daniel - District Clerk
Harris Coun!
ED101) 016827987
CAUSE NUMBER 2004-59790 By: Furshilla McGee
MICROCHECK SYSTEMS, INC. AND 8 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 1257 JUDICIAL DISTRICT
PLAINTIFFS AND THIRD PARTY DEFENDANT’S
SECOND AMENDED MOTION IN LIMINE
I
Microcheck Systems, Inc. and Microcheck Solutions, Inc. (“MicroCheck’),
and John D Manning (“Manning”), plaintiffs and third-party
defendant/counter plaintiff, request the Court to instruct the Defendants, the
attorneys for the Defendants and through the attorneys for the Defendants all
witnesses for the Defendants, to refrain from doing or saying anything in the
presence of the jury which would in any way advise, suggest, or imply any of
the following matters or from doing any of the following acts without first
approaching the bench and obtaining prior approval:
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.
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.
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.
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. EvID. 401, 403,
801, 802.
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. EvImpD.
401-403.
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.
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.
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.
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.
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.
11) Any attempt to put members of the jury into any of the
parties’ shoes.
12) Any reference to the claims of privilege raised by Plaintiffs
during discovery.
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.
14) The status of the law license of Stan Nix.
15) The status of the law license of Michael Harsemma.
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.
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.
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.
Il.
The matters set out above would not be admissible in evidence for any
purpose on proper and timely objection because they have no bearing on the
material issues in this case or the rights of the parties to this suit. Permitting
interrogation of witnesses, comments to jurors, or prospective jurors, or offers
of evidence concerning any of the matters set forth hereinabove would
prejudice the jury, and sustaining objections to such questions, statements or
evidence introduced by counsel or witnesses would not prevent the prejudice
caused by introduction of such questions, statements or evidence.
WHEREFORE, MicroCheck Systems, Inc., MicroCheck Solutions and
John D. Manning pray that this Court grant their Motion in Limine and also
grant such other and further relief to which they may show themselves justly
entitled.
Respectfully submitted,
The bbare Law Firm
By:
Patrick G. Hubbard
State Bar No. 10139500
Charioty I. James
Texas Bar No. 24037915
1075 Kingwood Drive, Suite 203
Kingwood, TX 77339
Tel.: 281-358-7035
Fax: 281-358-7035
Attorneys for Plaintiffs, MicroCheck
Systems, Inc., MicroCheck Solutions, Inc.
and
Third Party Defendant John D. Manning
CERTIFICATE OF SERVICE
This will certify that a true and correct copy of the foregoing document
has been forwarded to all counsel of record and pro se parties pursuant to the
wht
day, of April, 2012.
ows
Patrick G. Hubbard
Charioty I. James
Preview
Filed 12 April 13 P12:43 Chris Daniel - District Clerk Harris Coun! ED101) 016827987 CAUSE NUMBER 2004-59790 By: Furshilla McGee MICROCHECK SYSTEMS, INC. AND 8 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 1257 JUDICIAL DISTRICT PLAINTIFFS AND THIRD PARTY DEFENDANT’S SECOND AMENDED MOTION IN LIMINE I Microcheck Systems, Inc. and Microcheck Solutions, Inc. (“MicroCheck’), and John D Manning (“Manning”), plaintiffs and third-party defendant/counter plaintiff, request the Court to instruct the Defendants, the attorneys for the Defendants and through the attorneys for the Defendants all witnesses for the Defendants, to refrain from doing or saying anything in the presence of the jury which would in any way advise, suggest, or imply any of the following matters or from doing any of the following acts without first approaching the bench and obtaining prior approval: 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. 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. 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. 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. EvID. 401, 403, 801, 802. 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. EvImpD. 401-403. 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. 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. 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. 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. 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. 11) Any attempt to put members of the jury into any of the parties’ shoes. 12) Any reference to the claims of privilege raised by Plaintiffs during discovery. 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. 14) The status of the law license of Stan Nix. 15) The status of the law license of Michael Harsemma. 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. 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. 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. Il. The matters set out above would not be admissible in evidence for any purpose on proper and timely objection because they have no bearing on the material issues in this case or the rights of the parties to this suit. Permitting interrogation of witnesses, comments to jurors, or prospective jurors, or offers of evidence concerning any of the matters set forth hereinabove would prejudice the jury, and sustaining objections to such questions, statements or evidence introduced by counsel or witnesses would not prevent the prejudice caused by introduction of such questions, statements or evidence. WHEREFORE, MicroCheck Systems, Inc., MicroCheck Solutions and John D. Manning pray that this Court grant their Motion in Limine and also grant such other and further relief to which they may show themselves justly entitled. Respectfully submitted, The bbare Law Firm By: Patrick G. Hubbard State Bar No. 10139500 Charioty I. James Texas Bar No. 24037915 1075 Kingwood Drive, Suite 203 Kingwood, TX 77339 Tel.: 281-358-7035 Fax: 281-358-7035 Attorneys for Plaintiffs, MicroCheck Systems, Inc., MicroCheck Solutions, Inc. and Third Party Defendant John D. Manning CERTIFICATE OF SERVICE This will certify that a true and correct copy of the foregoing document has been forwarded to all counsel of record and pro se parties pursuant to the wht day, of April, 2012. ows Patrick G. Hubbard Charioty I. James