Motion-Secondary: MICROCHECK SYSTEMS INC (TEXAS CORPORATION) vs. ZIGROSSI & MURPHY L L C (TEXAS CORPORATION) (IND A

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                                CONFIRMED FILE DATE: 2/2/2010

Pd

NO. 2004-59790

MICROCHECK SYSTEMS, INC. IN THE DISTRICT COURT

AND

MICROCHECK SOLUTIONS, INC,

Plaintiffs,

v. 125TH JUDICIAL DISTRICT

ZIGROSSI & MURPHY, LLC, IND.
AND D/B/A EDUCATED
SOLUTIONS, CHRIS ZIGROSSI,
SCOTT MURPHY, MIKE SMITH,

Fiz

INDIVIDUALLY AND D/B/A CMS ‘Bia decison
TECHNOLOGY AKA CMS F ‘ork
TECHNOLOGIES, MICHOICE EB ~ 2 201

Time

Har
oy
>

OF HARRIS COUNTY, TEXAS

TECHNOLOGY SYSTEMS, INC.,
JIM

HAYDEN, ALEX CAMPBELL AND
JASON JABLECKI

Defendants.

AFFIDAVIT IN SUPPORT OF
PLAINTIFF'S MOTION TO REINSTATE
AFTER DISMISSAL WITHOUT PREJUDICE

BEFORE ME. the undersigned authority. personally appeared Scarlett Culpepper May. who
being duly sworn, deposed as follows:

"My name is Scarlett Culpepper May. | am at least 18 years of age and of sound mind. lam
personally acquainted with the facts alleged herein.

"Twas counsel for Plaintifls, MicroCheck Systems, Inc., MicroCheck Solutions, Inc., and
Cross Defendant, John Manning during most of 2009. I personally attended every hearing and
motion that was scheduled during my time of representation during 2009 until the docket call
scheduled for January 4, 2010. In early December, 2009 it was decided between me and my clients
that they would substitute counsel as they desired to file a Mandamus action concerning a ruling on
a Motion to Dismiss some of Plaintiffs’ causes of actions, which they telt were state causes of
actions, and J did not want to participate in that appellate matter. | was informed that attorney
Patrick G. Hubbard would be the new counsel, and I agreed to allow him to substitute counsel with
my clients’ approval. A Motion and Order for Substitution for Counsel was sent to me before theChristmas holidays. [had approved the motion with my signature, but the original of the document
did not get sent to Patrick Hubbard's office immediately. | have determined that the Motion and
Order for Substitution was mailed to my client, instead, for their signature and approval first, and
then was delivered to Patrick G. Hubbard's office. | assumed that the filing of the motion would be
expedited and handled without any more effort on my part because of the upcoming docket call and
trial date. [did not learn until January 5, 2010 that the Motion for Substitution had not been filed.
My thinking was that once [ signed the Motion and Order for Substitution that was off the hook on
the representation of Plaintiffs and | erroneously assumed that someone from Mr. I lubbard’s office
would appear at the docket call and proceed on with trial matters. or that the Mandamus would be
filed in the Court of Appeals and the trial would be delayed. My communications were with my
clients and not with Mr. Hubbard. My failure to appear at the docket call was not intentional and
was not a result of conscious indifference, but as a result of wrongly believing that new counsel
would take over all representation immediately after I signed off on the Motion for Substitution of
Counsel. I would never have intentionally failed to appear at any court hearing or docket call while
Twas still counsel of record. On January 5, 2010 I received correspondence trom my Microcheck
clients inquiring as to the status of the docket call. It was at that time that I spoke to the trial
coordinator that J learned that I was still Plaintitls’ counsel, and that no one from cither side had
appeared at docket call. There have been a number of docket calls on this case since it first began in
2004, and on each occasion, it appears that counsel for Plaintiffs always attended.

My failure to attend docket call was a mistake on my part, and not intentional, and certainly
not the result of any conscious indifference. | am asking this Honorable Court to please reinstate the

C& deck C Novy

Scarlett Culpepper May, Affiant
c
we ‘ \ ClO
SUBSCRIBED AND SWORN TO BEFORE ME on Seas A by Scarlett
Culpepper May, known to me to be the attorney who personally executed tHis affidavit.

who “f Crud cr2/
Notanp Public, Fac of Texas