Preview
11/29/2087 15:29 | 28197019—4 LAW OFFICES
~ PAGE 63/31
Cause No. 2004-59790
MICROCHECK SYSTEMS, INC. i IN THE DISTRICT COURT OF
AND MICROCHECK SOLUTIONS, INC,
Vs. F tz L E D
ZIGROSSI & MURPHY, L.L.C. HARRIS COUNTY, TERETE oh cheng
EDUCATED SOLUTIONS, NOV 29 amp
CHRIS ZIGROSSI, SCOIT MURPHY, Time: 7 ”
MIKE SMITH, JIM HAYDEN, By a
ALEX CAMPBELL, and ra
JASON JABLECKL, §
Defendants § 125™ JUDICIAL DISTRICT
EFENDANT/CO L »
AMENDED TRIAL PREPARATION ORDER
TO THE HONORABLE JUDGE OF SAID COURT:
‘COMES NOW, Defendant/Counter Plaintiff, MIKE SMITH, in the above styled and
numbered cause and files this Trial Preparation Order as required by this Court:
PARTY/ATTORNEY LIST;
Defendant: Mike Smith
Defendant's Counsel: Roy Murphy, III
Roy Murphy & Associates
TBA #14711000
12850 Jones Road, #201
Houston, Texas 77070-4955
281.807.4400 Ph.
281.970.1664 Fax
Defendant: Scott Murphy
Defendant’s Counsel J. Reid Perry
TBA #24037267
12850 Jones Road, #201
Houston, Texas 77070-4955
281.970.4175 Ph.
281.970.1664 Fax11/29/2887 15:29
2819701 amg
'
Plaintiff:
Plaintiffs' Counsel:
Pro Se:
1. NDED. Li
2. NDED E. LI
3. JURY CHARGE:
4. EPI ON EXCE 3
5. AMENDED MOTIO Li 2
6. PROPOSED TRIAL SCHEDULE:
LAW OFFICES
~
Microcheck Systems, Inc, and Microcheck
Solutions, Inc.
SHEEHY, SERPE & WARE, P.C.
Christopher D. DeMeo
TBA #00796456
2500 Two Houston Center
909 Fannin St.
Houston, Texas 77010
713.951.1000 Ph. -
713.951.1199 Fax
Chris Zigrossi
335 Shea Drive
Cedar Park, Texas 78613
. Attached,
. Attached.
Attached.
Attached.
Attached.
Attached.
Respectfully submitted,
R ‘UN
12850 Jones Road, Suite 201
Houston, Texas 77070-4955
281.807.4400 Ph.
281.970.1664 Fax
PAGE 84/3111/29/2887 15:29 28197014 LAW OFFICES ~ PAGE 85/31
.
CERTIFICATE OF SERVICE
I hereby certify that a true and correct copy of Defendant/Counter Plaintiff, Mike Smith's
Amended Trial Preparation Order has been forwarded to all Counsel of Record, by fax and/or hand
delivery on AAV, 22.9_, 2007.
ROY HY, W
Copy to:
Christopher D. DeMco
State Bar No. 00796456
2500 Two Houston Center
909 Fannin St.
Houston, Texas 77010
713/951-1000
713/951-1199 — fax
J. Reid Perry, Attomey at Law
12850 Jones Road, #201
Houston, TX 77070
281.970.4175 Ph.
281.970.1664 Fax
David P. Petersen
8303 Southwest Freeway, Suite 810
Houston, TX 77074
713.779.8500 Ph.
713.779.3648 Fax11/29/2887 15:29
? 281970} 6R4 LAW OFFICES PAGE 86/31
Cause No. 2004-59790
MICROCHECK SYSTEMS, INC. § IN THE DISTRICT COURT or? &
AND MICROCHECK SOLUTIONS, INC, :
Plaintiffs
Vs,
ZIGROSSI & MURPHY, L.L.C. HARRIS COUNTY,
EDUCATED SOLUTIONS,
FROST BANK, TEXAS,
CHRis AIGROSST, SCOTT MURPHY,
JIM HAYDEN,
ME CAMP ELL, and
JASON JABLECK], |, ™
125™' JUDICIAL DISTRICT
DEFEND. MIKE SMITH’S FIRST AMENDED I
1. Mike Smith, Defendant
11210 Steeplecrest Drive, #206
Houston, TX 77065
281.955.8144
2. Scott Murphy, Defendant
14555 Philippine, #1214
Houston, TX 77040
713.824.0201
3. Chris Zigrossi ~ Defendant
335 Shea Drive
Cedar Park, Texas 78613
4. Jim Hayden, Salesman for Microcheck Systems, Inc. & Educated Solutions
931 West Highpoint Drive
Lee Summit, MO 64081
5. Alex Campbell, Defendant
Address unknown
6. John D. Manning, Third Party Defendant
140 No. Houston Ave., Suite B
Humble, TX 77338
281.540.7650
7. Fred Harssema, Potential investor in Microcheck Systems, Inc.
Address Unknown11/29/2087 15:29 2819701664 LAW OFFICES PAGE 87/31
8. Michael E. Harssema, Attorney for Microcheck
Address Unknown
9. Les Mignerey
977 W. Gulfbank
Houston, TX 77088
Past CEO of Microcheck Systems, Inc.
10. Don Overley
P.O, Box 2307
Humble, TX
281.540.3540
11. Don Nunez
29202 Loddington
Spring, TX 77386
281.651.6069
Former employee of Microcheck Systems, Inc, who may testify as to certain matters
pertaining to Microcheck.
12, Sue Saco
977 W. Gulfbank
Houston, TX 77088
Sue Saco is an employee of Microcheck Systems, Inc. as a secretary.
13. Chuck Saco
977 W. Gulfbank
Houston, TX 77088
Chuck Saco is spouse of Sue Saco and a former employee of Microcheck Systems, Inc.
14, Andy Sousa
Address unknown
Andy Sousa is a former employee of Microcheck Systems, Inc.
15. Janet Lee
Address unknown
Janet Lee is a loan officer at Frost Bank who is familiar with some of the financial
arrangements made by Microcheck Systems, Inc.
16. Pete Trammel, Insurance Agent
908 Town & Country Blvd., #120
Houston, TX 77024
713.984.7680
Pete Trammel is familiar with retirement plans and 401k and will testify as to the 40]K
retirement plan set up by Mike Smith for employees.11/29/2887 15:29 2813701 5R4 LAW OFFICES
17.
18.
19.
20.
21.
22.
24.
Mike Manaloft, CPA
6600 Sands Point Drive, Suite 100
Houston, TX 77074
733.774.7766
He will testify as to the financial status of Micracheck for the years 2001-2006.
Roy Murphy, II, Attomey
12850 Jones Road, Suite 201
Houston, TX 77070-4955
281.807.4400 Ph.
Roy Murphy will testify as to reasonable attorneys fees.
J. Reid Perry, Attomey
12850 Jones Road, Suite 201
Houston, TX 77070-4955
281.970.4175 Ph.
J. Reid Perry will testify as to reasonable attorneys fees.
W. Leo Theiss
19011 Casper Drive
Spring, TX 77373
281.355.7121
W. Leo Theiss will testify as to reasonable attorneys fees.
Glen Jumonville
Jmed EMR Records
2014 West Pinhook Road
LaFayette, LA 70508
Owner of IMed medical records
Mike Eyre
10500 Richmond, #130
Houston, TX 77042
713.783.1038
Owner of Apollo Sales Group
Stan Nix
1384 Stonehollow Drive
Kingwood, TX 77339-0000
281.358.8644
The following individuals associated with Tempe Union High School District 213,
located at 500 Guadalupe Rd., Tempe, AZ 35283-3599:
Steve Adolph, Superintendent
Sandra E, Dowling, Ed. D. Superintendent - Maricopa County School
PAGE 28/3111/29/2887 15:29 2819705564 LAW OFFICES PAGE 49/31
Michelle Helm, Governing Board Member
Don Keuth, Governing Board Member
Employees of Tempe Union High School District 213 who knew or may have known of
the letter sent to Tempe Union High School District 213 by Microcheck Solutions, Inc.
and/or John Manning on October 9, 2007, as well as any other correspondence.11/29/2887, 15:29
2813701 8et LaW OFFICES PAGE 10/31
CAUSE NUMBER 2004-59790
MICROCHECK SYSTEMS, INC. AND 5 IN THE DISTRICT COURT OF
MICROCHECK SOLUTIONS, INC. §
§
Plaintiffs, §
§
vs. §
§ HARRIS COUNTY, TEXAS
ZIGROSSI & MURPHY, L.LC., Individually §
and d/b/a EDUCATED SOLUTIONS; CHRIS § FILy D
ZIGROSSI, SCOTT MURPHY; MIKE 8 Theresa Chan,
SMITH Individually and d/b/a CMS 8 istrict Clary?
TECHNOLOGY a/k/a CMS § NOY 29 any
TECHNOLOGIES; MICHOICE §
TECHNOLOGY SYSTEMS, INC; JIM §
HAYDEN; ALEX CAMPBELL; AND § —
JASON JABLECKI §
Defendants i 125™4 JUDICIAL DISTRICT
DEFE MIKE °§ AMENDED EXHIBIT LIST
_ Offer Object Admit
1. Professional Service Agreement
2, Mike Smith Driver’s License
3. Payroll Records (CMS Technologies)
A, Payroll Records (MiChoice
Technologies)
5. Documentation on MicroCheck’s New
Corporate Structure - Mike Smith’s
Tax Returns (CMS Technologies)
2004-2005
6. Apollo Sales Group Contract with
CMS Technologies
7. Email from Chris Zigrossi to Mike
Smith (June 1 2004) Re: Start-up Plans
111/29/2887 15:29 2819704564 LAW OFFICES ~ PAGE 11/31
Offer Obiect Admit
8. Email from Chris Zigrossi to Mike
Smith (July 29, 2004) Re: MicroCheck
follow up
9. State of Texas Revenue Opportunity
Program Center. Re: MicroCheck
Franchise Tax Returns
10. MicroCheck’s Unanimous Consent to
Action In Lieu of Annual Meeting
of the Shareholders and Board of
Directors documentation
11. MiChoice Technology Systems
Certificate of Incorporation
12. Mike Smith letter (March 11, 2004)
to John Manning Re: Discussing
Corporate Resolution Issues
13. Mike Smith Jetter (May 10" 2004)
to John Manning Re: Buying out John Manning
14, MiChoice Technology Systems Inc.
By-Laws
15. MiChoice Marketing Materials .
16. MiChoice Client Files
17, All Communication (email, copy of
emails, letters) between MiChoice
customers and MiChoice, Mike Smith,
Individually and CMS Technology.
18. MiChoice Client List
19. MicroCheck Systems Strategic Overview
20. Strategic and Corporate Assessment
(February 14" 2004) Submitted by
Chris Zigrossi11/29/2087 15:29 2819701 pat LAW OFFICES
21. Letter from Robert Buchholz to Les
Tweatt (October 27" 2004)-
Re: Settlement No Longer Possible
22. Email from Chris Zigrossi to Scott
Murphy (December 10™ 2004)
Re: Yesterday, Meeting with Mike
23. Strategic Parmer Agreement between
MicroCheck and Educated Solutions
24. D&B Monitoring Scope (Jan 7 1998)
25. Email from Les Mignerey to Mike
Smith (May 6" 2002) Re Year End Financials
26. Email from Mike Bianchi to Mike
Smith (May 7" 2002) Re: Financial
Statement for 2001
27. Colorado Attorney General Press Release
(October 30™ 2002)
28. Meeting Objectives Documentation
29, Affidavit of Les Mignerey
30. Copies of Expenses of MiChoice on Advertising
31. MiChoice Product Brochures
32. MiChoice Direct Mail and Magazine Advertisements
33. MiChoice Tax Return (2006)
34, Imed Reseller Agreement
Re: CMS Consulting/Technologies
35. Non-Disclosure Agreement Between Imed
and CMS Consulting/Technologies
36. iMed EMR Software Brochure
PAGE 12/31
Offer Object Admit11/29/2887 15:29 2819701654 LAW OFFICES
37.
38.
MicroCheck Systems Balance Sheet 1999-2005
MicroCheck Solutions Balance Sheet 2005-2007
39, MicroCheck Systems Total Revenues 1998-2007
40.
4}.
42.
43,
45.
MicroCheck Systems Tax Returns
October 9, 2007, letter from Microcheck Solutions, Inc.
and/or John Manning, to Tempe Union High School
District 213, Tempe, Arizona
October 16, 2007, letter from Microcheck Solutions, Inc.
and/or John Manning, to Tempe Union High School
District 213, Tempe, Arizona
October 29, 2007, letter from Microcheck Solutions, Inc.
and/or John Manning, to Tempe Union High School
District 213, Tempe, Arizona
November 2, 2007, letter from Microcheck Solutions, Inc.
and/or John Manning, to Tempe Union High School
District 213, Tempe, Arizona
Plaintiffs Third Amended Petition and Application
for Injunctive Relief
Multitudes of documents produced by Defendant
from Defendant’s records including documents from
employees personal files, some of which have already
been marked and attached as “Exhibits” to depositions.
Some of these documents still have not been produced
and are promised by Defendant. These Exhibits are too
numerous to list individually.
Offer
PAGE 13/3111/23/2887 15:29 2819701 5at
LAW OFFICES
PAGE 14/31
|E NUMBER 2004-;
MICROCHECK SYSTEMS, INC. AND
MICROCHECK SOLUTIONS, INC.
Plaintiffs,
vs.
ZIGROSSI & MURPHY, L.L.C.,
Individually and d/b/a EDUCATED
SOLUTIONS; CHRIS ZIGROSSI; SCOTT
MURPHY; MIKE SMITH Individually
and d/b/a CMS TECHNOLOGY a/k/a CMS
TECHNOLOGIES; MICHOICE
TECHNOLOGY SYSTEMS, INC; JIM
HAYDEN; ALEX CAMPBELL; AND
JASON JABLECKI
(0 CO COP A 2 80D UD U0 IP COD LD CLI LGD 60? 610 CN OD
Defendants
IN THE DISTRICT COURT OF
HARRIS COUNTY, TEXAS
FILED
Theresa Ch,
District Clark?
NOV 29 2007
a _
7
125™ JUDICIAL DISTRICT
CHARGE OF THE COURT
LADIES AND GENTLEMEN OF THE JURY:
This case is submitted to you by asking questions about the facts, which you must decide
from the evidence you have heard in this trial. You arc the sole judges of the credibility of the
witnesses and the weight to be given their testimony, but in matters of law, you must be governed
by the instructions in this charge. In discharging your responsibility on this.jury, you will observe
all the instructions which have previously been given you. I shall now give you additional
instructions which you should carefully and strictly follow during your deliberations.
1, Do not let bias, prejudice or sympathy play any part in your deliberations.
2. In arriving at your answers, consider only the evidence introduced here under oath and
such exhibits, if any, as have been introduced for your consideration under the rulings of the court,
that is, what you have seen and heard in this courtroom, together with the law as given you by the11/23/2887 15:29
2813701 pag LAW OFFICES ~ PAGE 15/31
Court. In your deliberations, you will not consider or discuss anything that is not represented by the
evidence in this case.
3. Since every answer that is required by the charge is important, no juror should state or
consider that any required answer is not important.
4. You must not decide who you think should win, and then try to answer the questions
accordingly. Simply answer the questions, and do not discuss nor concern yourselves with the
effect of your answers.
5. You will not decide the answer to a question by lot or by drawing straws, or by any other
method of chance. Do not return a quotient verdict. A quotient verdict means that the jurors agree
to abide by the result to be reached by adding together each juror’s figures and dividing by the
number of jurors to get an average. Do not do any trading on your answers; that is, one juror should
not agree to answer a certain question one way if others will agree to answer another question
another way.
6. You may render your verdict upon the vote of ten or more members of the jury. The
same ten ot more of you must agree upon all of the answers made and to the entire verdict. You
will not, therefore, enter into an agreement to be bound by a majority or any other vote of less than
ten jurors. If the verdict and all of the answers therein are reached by unanimous agreement, the
presiding juror sball sign the verdict for the entire jury. If any juror disagrees as to any answer
made by the verdict, those jurors who agree to all findings shall each sign the verdict.
These instructions are given you because your conduct is subject to review the same as that
of the witnesses, parties, attomeys and the judge. If it should be found that you have disregarded
any of these instructions, it will be jury misconduct and it may require another trial by another jury;
then all of our time will have been wasted.11/29/2887 15:29 281970168" LAW OFFICES PAGE 16/31
~
The presiding juror or any other who observes a violation of the court's instructions shall
immediately warn the one who is violating the same and caution the juror not to do so again.
When words are used in this charge in a senso that varies from the meaning commonly
understood, you are given a proper legal definition, which you are bound to accept in place of any
other meaning.
Answer "YES" or "NO" to all questions unless otherwise instructed. A "YES" answer must
be based on a preponderance of the evidence. If you do not find that a preponderance of the
evidence supports a "YES" answer, then answer "NO". The term “preponderance of the evidence”
means the greater weight and degree of credible evidence admitted in this case, Whenever a
question requires an answer other than "YES" or "NO," your answer must be based on a
preponderance of the evidence.
A fact may be established by direct evidence or by "CIRCUMSTANTIAL EVIDENCE” or
both. A fact is established by direct evidence when proved by documentary evidence or by
witnesses who saw the act done or heard the words spoken. A fact is established by
CIRCUMSTANTIAL EVIDENCE when it may be fairly and reasonably inferred from other facts
proved.
QUESTION NO. 1
When Microcheck Systems, Inc. was formed did John Manning and Mike Smith enter into
an agreement that John Manning would own 70% interest in the corporation and Mike Sraith would
own 30%?
Answer "Yes" or "No":
If you answer “Yes” to Question No. 1, then only in that event answer Question 2. Otherwise, do
not answer Question No. 2.11/29/2887 15:29 2619701 ARE LAW OFFICES ~ PAGE 17/31
QUESTION NO. 2.
Did John Manning fail to comply with the agreement, if any?
Answer "Yes" or "No":
If you have answered “Yes” to Question 2, then only in that event answer Question No. 3.
Otherwise, do not answer Question No. 3.
QUESTION NO. 3,
What sum of money paid down in cash would reasonably and fairly compensate Mike
Smith for damages he sustained?
Answer:
QUESTION NO. 4.
Did any of those named below slander Mike Smith?
In answering this question, you should use the following definitions and instructions:
“Slander” means to orally communicate to a third person a defamatory statement without
legal excuse,
A “defamatory statement” is a false statement that tends to harm the reputation of its
subject, lowers the subject in the community’s estimation, deters third parties from associating with
the subject, or exposes the subject to public ridicule.
Answer “Yes” or “No.”
John Manning:
If you answered “Yes” to the prior question, then answer the following question. If you
answered “No” for all those named in the prior question, do not answer the following question.
Source: Cain vy. Hearst Corp., 878 §.W.2d 577, 580 (Tex. 1994).
QUESTION NO. 5,
Was the slander against Mike Smith slander per se?
In answering this question, you should use the following definitions and instructions:_. 11/29/2087 15:29 2e19701 gee LAW OFFICES
PAGE 18/31
You are instructed that a statement is slander per se when the statement injures a person or
entity in their office, profession, or occupation.
Answer “Yes” or “No,”
Answer:
Sourcs: Waisaith v. Lack's Stores, Inc., 474 8.W.2d 444, 445 n.2 (Tex. 1971). Bradbury v.
Scott, 788 S.W.2d 31, 38 (Tex.App. — Hous. (1* Dist.} 1989, writ denied).
T€ you answered “Yes” for any of those named in the Question No. 5, then answer the
following question. If you answered “No” for all those named in the Question No, 5, do not answer
the following question.
Ss (0.
What sum of money, if paid now in cash, would fairly and reasonably compensate Mike
Smith for the slander?
Consider the elements of damages listed below and none other. Consider each element
separately. Do not award any sum of money on any element if you have otherwise, under some
other element, awarded a sum of money for the same loss, That is, do not compensate twice for the
same loss, if any, Do not include interest on any amount of damages you find.
Answer separately, in dollars and cents, for damages, if any.
a Injury to reputation sustained in the past.
Answer:
db. Injury to reputation that, in reasonable probability, Mike Smith will sustain in the
future,
Answer:
G Lost income in the past.
Answer:
a Loss of income that, in reasonable probability, Mike Smith will sustain in the future.
Answer:
Source: PIC 80.1, 80.2, 80.1.5 Shearson Lehmann Hutton, Inc. vs. Tucker, 806 S.W.2d
914,922 (Tex. App. — Corpus Christi 1991, writ dism’d).11/29/2887 15:29 281970 at LAW OFFICES PAGE 19/31
After you retire to the jury room, you will select your own presiding juror. The first thing
the presiding juror will do is to have this complete charge read aloud and then you will deliberate
upon your answers to the questions asked.
It is the duty of the presiding juror:
1. to preside during your deliberations;
2. to see that your deliberations are conducted in an orderly manner and in accordance
with the instructions in this charge;
3. to write out and hand to the bailiff any communications conceming the case that you
desirc to have delivered to the judge;
A. to vote on the questions;
5. to write your answers on the questions in the spaces provided; and
6. to certify to your verdict in the space provided for the presiding juror’s signature or
to obtain the signatures of all the jurors who agree with the verdict if your verdict is
less than unanimous.
You should not discuss the case with anyone, not even with other members of the jury,
unless all of you are present and assembled in the jury room. Should anyone attempt to talk to you
about the case before the verdict is returned, whether at the courthouse, at your home, or elsewhere,
please inform the Judge of this fact,
When you have answered all of the questions you are required to answer under the
instructions of the Judge, and your presiding juror has placed your answers in the spaces provided,
and signed the verdict as presiding juror or obtained the signatures, you will inform the bailiff at the
doot of the jury room that you have reached a verdict, and then you will return into court with your
verdict.
JUDGE PRESIDING11/29/2887 15:29 2019701684 LAW OFFICES PAGE 20/31
CERTIFICATE
We, the Jury, have answered the above and foregoing questions as herein indicated, and
herewith retum same into court as our verdict.
(To be signed by the presiding juror if unanimous.)
Presiding Juror
(To be signed by those rendering the verdict if not unanimous.)11/29/2887 15:29 2819701 jeg LAW OFFICES PAGE 21/31
-~
CERTIFICATE OF SERVICE
I hereby certify that a true and correct copy of the above and foregoing instrument was
forwarded to all counsel of record on November
Copies to:
Copy to:
Christopher D. DeMeo
State Bar No. 00796456
2500 Two Houston Center
909 Fannin St.
Houston, Texas 77010
713/951-1000
713/951-1199 — fax
J. Reid Perry, Attorney at Law
12850 Jones Road, #201
Houston, TX 77070
281.970.4175 Ph.
281.970.1664 Fax
David P. Petersen
$303 Southwest Erecway, Suite 810
Houston, TX 77074
713.779.8500 Ph.
713.779.8648 Fax11/29/2887 15:29 281970, 8R4 LAW OFFICES
PAGE 22/31
CAUSE NUMBER 2004-59790
MICROCHECK SYSTEMS, INC. 4i § IN THE DISTRICT COURT OF
MICROCHECK TECHNOLOGY SYSTEMS, 8
INC. H §
Plaintify, §
§
vs. | §
i § HARRIS COUNTY, TEXAS
ZIGROSSI & MURPHY, L.L.C., Individually § FILED
and d/b/a EDUCATED SOLUTIONS; CHRIS § Theresa Chan;
ZIGROSSI, SCOTT MURPHY: MIKE § District Clore
SMITH Individually and d/b/a CMS §
TECHNOLOGY a/k/a CMS § NOY 29 2007
TECHNOLOGIES; MICHOICE 8
TECHNOLOGY SYSTEMS, INC; JIM 8 By.
HAYDEN; ALEX CAMPBELL; AND § me
JASON JABLECKI §
Defendants i 125™ JUDICIAL DISTRICT
DEFENDANT, MIKE SMITH’S SECOND
AMENDED DEPOSITION & TESTIMONY EXCERPTS
Here following are excerpts from the testimony of Chris Zierossi offered on November 17, 2004:
Page Line Through Page Line
11 il - 13 13
15 4 - 15 1
16 17 - 16 22
17 12 - 17 18
19 1 - 19 - 4
29 14 - 29 25
33 20 - 34 9
37 5 - 37 13
38 5 - 39 11
41 2 - 4) 16
43 4 - 43 10
44 12 . 45 1
52 4 - 54 9
59 10 - 59 19
ere wing are exci ue S: *s testimony offt
Page Line Through Page Line
33 24 - 25
34 1 : 1211/23/2087 15:29 2819701 pig LAW OFFICES PAGE 23/31
-~
52 2 - 4
52 20 . 25
53 1 : | 10
50 8 - i 17
Here following are excerpts of Les Mignerey’s deposition offered on September 26, 2007.
il
|
Page Line Through ‘Page Line
97 8 : 209 «10
219 6 . 236021
Here followi r ming’s depositi 2
Page Line Through Page Line11/29/2087 15:29 2819701 faq . LAW OFFICES PAGE 24/31
Canse No. 2004-59790
MICROCHECK SYSTEMS, INC. IN THE DISTRICT COURT OF
AND MICROCHECK SOLUTIONS, INC.
Plaintiffs
Vs.
ZIGROSSI & MURPHY, L.L.C. HARRIS COUNTY, TEXAS
EDUCATED SOLUTIONS,
FROST BANK, TEXAS,
CHRIS ZIGROSSI, SCOTT MURPHY,
MIKE SMITH, JIM HAYDEN,
ALEX CAMPBELL, and
JASON JABLECKI, i
Defendants 125™ JUDICIAL DISTRICT
DEFENDANT/ COUNTER PLAINTIFF,
MIKE SMITH’S AMENDED MOTION IN LIMINE
TO THE HONORABLE JUDGE OF SAID COURT:
COMES NOW, MIKE SMITH AND MICHOICE, DEFENDANT AND COUNTER
PLAINTIFF (“Defendant”) by and through their attorney of record, Roy Murphy, III in the
above-entitled and numbered cause, and before commencement of the voir dire examination of
the jury panel, respectfully moves that counsel for Plaintiff, and, through such opposing counsel,
any and all witnesses, be instructed by appropriate order of this Honorable Court to refrain from
making any mention or interrogation, directly or indirectly, in any manner whatsoever, including
the offering of documentary evidence concerning any of the matters hereinafter set forth without
first approaching the bench outside the hearing of all prospective jurors ultimately selected in
this cause, in regard to any alleged theory of admissibility of such matter, to-wit:
I.
The matters set out would be inadmissible in evidence for any purpose on proper and
timely objection in that they have no bearing or relevance on the issues in this case or the rights
of the parties to this suit. In the alternative and without waiving the foregoing, Defendant would
assert that such matters if found to have some relevance, would be inadmissible as the likelihood11/29/2087 15:29 2819701 ame LAW OFFICES PAGE 25/31
~
of the prejudicial effect on Defendant would greatly outweigh any probative value to the fact
finder.
I.
Permitting interrogation of witnesses, comments to jurors, of prospective jurors, or offers
of evidence concerning any of these matters would prejudice the jury, and sustaining objections
to such questions, statements, or evidence introduced by counsel or witnesses will not prevent
prejudice, but will reinforce the development of questionable evidence.
1. References to the filing of this Motion in Limine by the Defendant and Counter-Plaintiff,
or to any ruling by the Court in response to this Motion.
Cody v, Mustang Oil Tool Co., Inc, 595 §.W.2d 214,216 (Tex. App.--Eastland 1980, writ
refd n.r.e.)
AGREED BY COUNSEL, GRANTED DENIED.
2. Any reference, comment or statement regarding the Defendant and Counter-Plaintiff's
failure to call witnesses without showing that those witnesses are under Defendant's
control.
AGREED BY COUNSEL. GRANTED DENIED.
3. The Defendant's personal habits, such as drinking, smoking or drug habits, for the reason
that there is no allegation or contention that the Defendant was intoxicated or under the
influence of drugs at the time of the occurrence made the basis of this suit or that such
may be relevant to the injuries Plaintiff suffered as a result of this collision. McCarty v.
Gappelberg, 273 S.W.2d 943 (Tex. Civ. App., 1954, n.r.e.).
AGREED BY COUNSEL, GRANTED DENIED.
4. That the counsel for the Plaintiff does not express their personal opinions regarding the
case, Wallace y, Liberty Mutual Ins, Co., 413 S.W.2d 787 (Tex. Civ, App.—Houston,
1967, writ ref'd n.t.¢.).11/29/2887 15:29 281978 yq LAW OFFICES ~ PAGE 26/31
AGREED BY COUNSEL____——sGRANTED_CDENIED_
5. That the Plaintiff not mention or state to the jury the probable testimony of a witness who
is absent or unavailable and whojwas not called to testify in this cause.
AGREED BY COUNSEL, GRANTED DENIED___
6. That Plaintiff should not elicit or offer evidence or testimony from any witnesses,
including experts, which have not been properly and timely designated pursuant to the
Texas Rules of Civil Procedure, (TRCP 215).
AGREED BY COUNSEL, GRANTED DENIED.
7. That counsel be prohibited from calling any person and questioning a witness as an
expert in a specific area without first establishing or proving up that person as ah expert
with scientific, technical or other specialized knowledge. Rule 702, Texas Rules of
Evidence.
AGREED BY COUNSEL GRANTED DENIED.
8. That the Plaintiff, or Plaintiffs counsel, refrain from referring to, displaying or |quoting
from any books, treatises, articles, pamphlets, or lists without previously establishing that
the items or documents were relied upon or deemed authoritative by an expert testifying
in this case.
AGREED BY COUNSEL, GRANTED DENIED.
9. Defendant’s previous marriage history as such is not relevant to any material issue.
AGREED BY COUNSEL. GRANTED DENIED.
10. Offer any evidence which was not timely and properly disclosed; produced or answered
in response to Defendant’s discovery requests in this case.
AGREED BY COUNSEL. GRANTED DENIED.
11.‘ Refrain from mentioning to or asking a question regarding the financial status or
ownership of assets or other properties or business or investments of Defendant or any11/29/2887 15:29 281970154 LAW OFFICES PAGE 27/31
ra “
entity owned or otherwise affiliated with Smith for the reason that such collateral
financial matters are not relevant to any material issue in this lawsuit and the purpose
would to prejudice and inflame the jury. TEX.R.EVID, 401-403.
AGREED BY COUNSEL, GRANTED DENIED.
12. Refrain from referencing any or all objections made by Defendant in its answers to
interrogatories, responses to request for production, at hearings or depositions, as well as
any objections made by the Defendant in the above discovery proceedings as well as
teferencing Defendant’s refusal to answer questions to which they made objections. The
fact that the Defendant 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
Defendant.
AGREED BY COUNSEL. GRANTED DENIED.
13. Refrain 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 Defendant, any entity
owned or otherwise affiliated with Smith, 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 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.11/29/2887 15:29 2819701 aq LAW OFFICES PAGE 28/31
s
AGREED BY COUNSEL, GRANTED CzDENIED_
14. ‘Please refrain from eliciting any evidence or statement regarding the net worth of
Defendant or any entity owned or otherwise affiliated with Smith, his financial
circumstances or any similar information. The net worth of those named above is not
relevant.
AGREED BY COUNSEL. GRANTED DENIED____
15. Refrain 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
Defendant.
AGREED BY COUNSEL. GRANTED DENIED.
16. Any attempt by Plaintiffs attorneys to seek or request the attorneys for Defendant 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 Defendant in an
awkward and embarrassing situation before the jury. A refusal on the part of Defendant
would serve to generate prejudice, even though Defendant may be within his legal rights
in making the refusal.
AGREED BY COUNSEL GRANTED DENIED.
17, Any reference to the inability to take the deposition of Mike Smith.
AGREED BY COUNSEL, GRANTED DENIED.
18. Refrain from stating to the jury panel or the jury that Tony Isaac, is an agreed upon
expert, as he did at the time of the injunction hearing. To state this would be misleading
and is highly prejudicial. Further, it is clear Tony Isaac has become an advocate against
Mike Smith and MiChoice and in favor of the Plaintiff, Microcheck and John Manning.11/29/2087 15:29 2819701 me LAW OFFICES PAGE 29/31
~n
AGREED BY COUNSEL, GRANTED DENIED___
19, Plaintiff and Plaintiffs witnesses should be instructed not to refer to an alleged
settlement agreement between Scott Murphy, Chris Zigrossi and Microcheck without first
approaching the bench before going into said settlement. The allegations of the
settlement is highly prejudicial to the Defendant in this case and may not be admissible
for purposes of determining damages in this case, but may only be admissible as to
injunctive relief. Specifically, Defendant would ask the court to restrain the Plaintiff and
his witnesses during the voir dire or opening statement, and before making any offerings
in this regard to approach the bench.
AGREED BY COUNSEL. GRANTED DENIED.
20. To refrain from stating to the jury that Tony Isaac is an agreed upon expert or to allude to
the fact that he was a neutral third party expert, for the reason is it is simply not true. The
circumstances under which Mr. Isaac was hired is subject to dispute or question, but at
any rate, the Defendants feel they had a limited agreement for a very short period of time;
and Mr. Isaac turned out to be an expert who champions the cause of the Plaintiff,
Microcheck Systems, Inc. It would be totally unfair for Mr. Isaac to be referred to as a
neutral or agreed upon expert.
AGREED BY COUNSEL. GRANTED DENIED
WHEREFORE, PREMISES CONSIDERED, Mike Smith and MiChoice Solutions, Inc.
prays that the Court grant this Motion in Limine and also grants to other and further relicf to
which it may show itself justly entitled.
IT IS THE FINDING of the court that violation of this Order by Plaintiffs’ counsel or any
of Plaintiffs’ witnesses would be likely to constitute undue harm to Defendant's case and to11/29/2087 15:29 2819701 pee LAW OFFICES PAGE 38/31
A
deprive Defendant of a fair and impartial jury trial, and could lead to a mistrial or other
sanctions, as justice might require.
SIGNED this the day of, , 2007.
JUDGE PRESIDING11/29/2887 15:29 2819781 78y LAW OFFICES PAGE 31/31
~
CAUSE NUMBER 2004-59790
MICROCHECK SYSTEMS, INC. AND § IN THE DISTRICT COURT OF
MICROCHECK SOLUTIONS, INC. §
§
Plaintiffs, §
§
VS. §
5 HARRIS COUNTY, TEXAS
ZIGROSSI & MURPHY, L.L.C., Individually § ILED
and d/b/a EDUCATED SOLUTIONS; CHRIS § Theresa Chang
ZIGROSSI, SCOTT MURPHY; MIKE 8 District Clork
SMITH Individually and d/b/a CMS § NOV 29 2007
TECHNOLOGY a/k/a CMS §
TECHNOLOGIES; MICHOICE § as
TECHNOLOGY SYSTEMS, INC; JIM § PY —_§——_
HAYDEN; ALEX CAMPBELL; AND §
JASON JABLECKI 8
Defendants i 1257 JUDICIAL DISTRICT
PLAINTIFF’S PROPOSED TRIAL SCHEDULE
1. It is my estimation that this case will require at least 2-1/2 weeks for trial.11/29/2887 15:29 2819701 fied LAW OFFICES ~ PAGE 982/31
ROY MURPHY & ASSOCIATES
ATTORNEYS AT LAW
12850 JONES ROAD, SUITE 201
HOUSTON, TEXAS 77070 py
ROY MURPHY, I IL E
Ri : Tors D, 807.4400
BOARD CERTIFIED Pretreg Sit 2 1.074400
PERSONAL INJURY TRIAL LAW
Nol
‘TEXAS BOARD OF LEGAL SPECIALIZATION V 29 apy 2389313468
Viat Fax Filing 2
November 29, 2007 ne
Theresa Chang, District Clerk
201 Caroline, Civil Intake
Houston, TX 77002
Re: Cause No. 2004-59790; Microcheck Systems, Inc. and Microcheck Solutions, Inc.
vs. Zigrossi & Murphy, L.L.C., et al; In the 125th Judicial District Court of Harris
County, Texas
Dear Clerk:
Please file the enclosed:
DEFENDANT/COUNTER PLAINTIFF, MIKE SMITH’S AMENDED TRIAL
PREPARATION ORDER.
(X) Please stamp the date of filing on copy of this letter & pleading to signify filing of the above
and retum it for my files.
(X) All counsel have been sent a copy of same.
Thank you for your prompt attention to this matter.
Ce:
Christopher DeMeo
J. Reid Perry
David Petersen
Preview
11/29/2087 15:29 | 28197019—4 LAW OFFICES ~ PAGE 63/31 Cause No. 2004-59790 MICROCHECK SYSTEMS, INC. i IN THE DISTRICT COURT OF AND MICROCHECK SOLUTIONS, INC, Vs. F tz L E D ZIGROSSI & MURPHY, L.L.C. HARRIS COUNTY, TERETE oh cheng EDUCATED SOLUTIONS, NOV 29 amp CHRIS ZIGROSSI, SCOIT MURPHY, Time: 7 ” MIKE SMITH, JIM HAYDEN, By a ALEX CAMPBELL, and ra JASON JABLECKL, § Defendants § 125™ JUDICIAL DISTRICT EFENDANT/CO L » AMENDED TRIAL PREPARATION ORDER TO THE HONORABLE JUDGE OF SAID COURT: ‘COMES NOW, Defendant/Counter Plaintiff, MIKE SMITH, in the above styled and numbered cause and files this Trial Preparation Order as required by this Court: PARTY/ATTORNEY LIST; Defendant: Mike Smith Defendant's Counsel: Roy Murphy, III Roy Murphy & Associates TBA #14711000 12850 Jones Road, #201 Houston, Texas 77070-4955 281.807.4400 Ph. 281.970.1664 Fax Defendant: Scott Murphy Defendant’s Counsel J. Reid Perry TBA #24037267 12850 Jones Road, #201 Houston, Texas 77070-4955 281.970.4175 Ph. 281.970.1664 Fax11/29/2887 15:29 2819701 amg ' Plaintiff: Plaintiffs' Counsel: Pro Se: 1. NDED. Li 2. NDED E. LI 3. JURY CHARGE: 4. EPI ON EXCE 3 5. AMENDED MOTIO Li 2 6. PROPOSED TRIAL SCHEDULE: LAW OFFICES ~ Microcheck Systems, Inc, and Microcheck Solutions, Inc. SHEEHY, SERPE & WARE, P.C. Christopher D. DeMeo TBA #00796456 2500 Two Houston Center 909 Fannin St. Houston, Texas 77010 713.951.1000 Ph. - 713.951.1199 Fax Chris Zigrossi 335 Shea Drive Cedar Park, Texas 78613 . Attached, . Attached. Attached. Attached. Attached. Attached. Respectfully submitted, R ‘UN 12850 Jones Road, Suite 201 Houston, Texas 77070-4955 281.807.4400 Ph. 281.970.1664 Fax PAGE 84/3111/29/2887 15:29 28197014 LAW OFFICES ~ PAGE 85/31 . CERTIFICATE OF SERVICE I hereby certify that a true and correct copy of Defendant/Counter Plaintiff, Mike Smith's Amended Trial Preparation Order has been forwarded to all Counsel of Record, by fax and/or hand delivery on AAV, 22.9_, 2007. ROY HY, W Copy to: Christopher D. DeMco State Bar No. 00796456 2500 Two Houston Center 909 Fannin St. Houston, Texas 77010 713/951-1000 713/951-1199 — fax J. Reid Perry, Attomey at Law 12850 Jones Road, #201 Houston, TX 77070 281.970.4175 Ph. 281.970.1664 Fax David P. Petersen 8303 Southwest Freeway, Suite 810 Houston, TX 77074 713.779.8500 Ph. 713.779.3648 Fax11/29/2887 15:29 ? 281970} 6R4 LAW OFFICES PAGE 86/31 Cause No. 2004-59790 MICROCHECK SYSTEMS, INC. § IN THE DISTRICT COURT or? & AND MICROCHECK SOLUTIONS, INC, : Plaintiffs Vs, ZIGROSSI & MURPHY, L.L.C. HARRIS COUNTY, EDUCATED SOLUTIONS, FROST BANK, TEXAS, CHRis AIGROSST, SCOTT MURPHY, JIM HAYDEN, ME CAMP ELL, and JASON JABLECK], |, ™ 125™' JUDICIAL DISTRICT DEFEND. MIKE SMITH’S FIRST AMENDED I 1. Mike Smith, Defendant 11210 Steeplecrest Drive, #206 Houston, TX 77065 281.955.8144 2. Scott Murphy, Defendant 14555 Philippine, #1214 Houston, TX 77040 713.824.0201 3. Chris Zigrossi ~ Defendant 335 Shea Drive Cedar Park, Texas 78613 4. Jim Hayden, Salesman for Microcheck Systems, Inc. & Educated Solutions 931 West Highpoint Drive Lee Summit, MO 64081 5. Alex Campbell, Defendant Address unknown 6. John D. Manning, Third Party Defendant 140 No. Houston Ave., Suite B Humble, TX 77338 281.540.7650 7. Fred Harssema, Potential investor in Microcheck Systems, Inc. Address Unknown11/29/2087 15:29 2819701664 LAW OFFICES PAGE 87/31 8. Michael E. Harssema, Attorney for Microcheck Address Unknown 9. Les Mignerey 977 W. Gulfbank Houston, TX 77088 Past CEO of Microcheck Systems, Inc. 10. Don Overley P.O, Box 2307 Humble, TX 281.540.3540 11. Don Nunez 29202 Loddington Spring, TX 77386 281.651.6069 Former employee of Microcheck Systems, Inc, who may testify as to certain matters pertaining to Microcheck. 12, Sue Saco 977 W. Gulfbank Houston, TX 77088 Sue Saco is an employee of Microcheck Systems, Inc. as a secretary. 13. Chuck Saco 977 W. Gulfbank Houston, TX 77088 Chuck Saco is spouse of Sue Saco and a former employee of Microcheck Systems, Inc. 14, Andy Sousa Address unknown Andy Sousa is a former employee of Microcheck Systems, Inc. 15. Janet Lee Address unknown Janet Lee is a loan officer at Frost Bank who is familiar with some of the financial arrangements made by Microcheck Systems, Inc. 16. Pete Trammel, Insurance Agent 908 Town & Country Blvd., #120 Houston, TX 77024 713.984.7680 Pete Trammel is familiar with retirement plans and 401k and will testify as to the 40]K retirement plan set up by Mike Smith for employees.11/29/2887 15:29 2813701 5R4 LAW OFFICES 17. 18. 19. 20. 21. 22. 24. Mike Manaloft, CPA 6600 Sands Point Drive, Suite 100 Houston, TX 77074 733.774.7766 He will testify as to the financial status of Micracheck for the years 2001-2006. Roy Murphy, II, Attomey 12850 Jones Road, Suite 201 Houston, TX 77070-4955 281.807.4400 Ph. Roy Murphy will testify as to reasonable attorneys fees. J. Reid Perry, Attomey 12850 Jones Road, Suite 201 Houston, TX 77070-4955 281.970.4175 Ph. J. Reid Perry will testify as to reasonable attorneys fees. W. Leo Theiss 19011 Casper Drive Spring, TX 77373 281.355.7121 W. Leo Theiss will testify as to reasonable attorneys fees. Glen Jumonville Jmed EMR Records 2014 West Pinhook Road LaFayette, LA 70508 Owner of IMed medical records Mike Eyre 10500 Richmond, #130 Houston, TX 77042 713.783.1038 Owner of Apollo Sales Group Stan Nix 1384 Stonehollow Drive Kingwood, TX 77339-0000 281.358.8644 The following individuals associated with Tempe Union High School District 213, located at 500 Guadalupe Rd., Tempe, AZ 35283-3599: Steve Adolph, Superintendent Sandra E, Dowling, Ed. D. Superintendent - Maricopa County School PAGE 28/3111/29/2887 15:29 2819705564 LAW OFFICES PAGE 49/31 Michelle Helm, Governing Board Member Don Keuth, Governing Board Member Employees of Tempe Union High School District 213 who knew or may have known of the letter sent to Tempe Union High School District 213 by Microcheck Solutions, Inc. and/or John Manning on October 9, 2007, as well as any other correspondence.11/29/2887, 15:29 2813701 8et LaW OFFICES PAGE 10/31 CAUSE NUMBER 2004-59790 MICROCHECK SYSTEMS, INC. AND 5 IN THE DISTRICT COURT OF MICROCHECK SOLUTIONS, INC. § § Plaintiffs, § § vs. § § HARRIS COUNTY, TEXAS ZIGROSSI & MURPHY, L.LC., Individually § and d/b/a EDUCATED SOLUTIONS; CHRIS § FILy D ZIGROSSI, SCOTT MURPHY; MIKE 8 Theresa Chan, SMITH Individually and d/b/a CMS 8 istrict Clary? TECHNOLOGY a/k/a CMS § NOY 29 any TECHNOLOGIES; MICHOICE § TECHNOLOGY SYSTEMS, INC; JIM § HAYDEN; ALEX CAMPBELL; AND § — JASON JABLECKI § Defendants i 125™4 JUDICIAL DISTRICT DEFE MIKE °§ AMENDED EXHIBIT LIST _ Offer Object Admit 1. Professional Service Agreement 2, Mike Smith Driver’s License 3. Payroll Records (CMS Technologies) A, Payroll Records (MiChoice Technologies) 5. Documentation on MicroCheck’s New Corporate Structure - Mike Smith’s Tax Returns (CMS Technologies) 2004-2005 6. Apollo Sales Group Contract with CMS Technologies 7. Email from Chris Zigrossi to Mike Smith (June 1 2004) Re: Start-up Plans 111/29/2887 15:29 2819704564 LAW OFFICES ~ PAGE 11/31 Offer Obiect Admit 8. Email from Chris Zigrossi to Mike Smith (July 29, 2004) Re: MicroCheck follow up 9. State of Texas Revenue Opportunity Program Center. Re: MicroCheck Franchise Tax Returns 10. MicroCheck’s Unanimous Consent to Action In Lieu of Annual Meeting of the Shareholders and Board of Directors documentation 11. MiChoice Technology Systems Certificate of Incorporation 12. Mike Smith letter (March 11, 2004) to John Manning Re: Discussing Corporate Resolution Issues 13. Mike Smith Jetter (May 10" 2004) to John Manning Re: Buying out John Manning 14, MiChoice Technology Systems Inc. By-Laws 15. MiChoice Marketing Materials . 16. MiChoice Client Files 17, All Communication (email, copy of emails, letters) between MiChoice customers and MiChoice, Mike Smith, Individually and CMS Technology. 18. MiChoice Client List 19. MicroCheck Systems Strategic Overview 20. Strategic and Corporate Assessment (February 14" 2004) Submitted by Chris Zigrossi11/29/2087 15:29 2819701 pat LAW OFFICES 21. Letter from Robert Buchholz to Les Tweatt (October 27" 2004)- Re: Settlement No Longer Possible 22. Email from Chris Zigrossi to Scott Murphy (December 10™ 2004) Re: Yesterday, Meeting with Mike 23. Strategic Parmer Agreement between MicroCheck and Educated Solutions 24. D&B Monitoring Scope (Jan 7 1998) 25. Email from Les Mignerey to Mike Smith (May 6" 2002) Re Year End Financials 26. Email from Mike Bianchi to Mike Smith (May 7" 2002) Re: Financial Statement for 2001 27. Colorado Attorney General Press Release (October 30™ 2002) 28. Meeting Objectives Documentation 29, Affidavit of Les Mignerey 30. Copies of Expenses of MiChoice on Advertising 31. MiChoice Product Brochures 32. MiChoice Direct Mail and Magazine Advertisements 33. MiChoice Tax Return (2006) 34, Imed Reseller Agreement Re: CMS Consulting/Technologies 35. Non-Disclosure Agreement Between Imed and CMS Consulting/Technologies 36. iMed EMR Software Brochure PAGE 12/31 Offer Object Admit11/29/2887 15:29 2819701654 LAW OFFICES 37. 38. MicroCheck Systems Balance Sheet 1999-2005 MicroCheck Solutions Balance Sheet 2005-2007 39, MicroCheck Systems Total Revenues 1998-2007 40. 4}. 42. 43, 45. MicroCheck Systems Tax Returns October 9, 2007, letter from Microcheck Solutions, Inc. and/or John Manning, to Tempe Union High School District 213, Tempe, Arizona October 16, 2007, letter from Microcheck Solutions, Inc. and/or John Manning, to Tempe Union High School District 213, Tempe, Arizona October 29, 2007, letter from Microcheck Solutions, Inc. and/or John Manning, to Tempe Union High School District 213, Tempe, Arizona November 2, 2007, letter from Microcheck Solutions, Inc. and/or John Manning, to Tempe Union High School District 213, Tempe, Arizona Plaintiffs Third Amended Petition and Application for Injunctive Relief Multitudes of documents produced by Defendant from Defendant’s records including documents from employees personal files, some of which have already been marked and attached as “Exhibits” to depositions. Some of these documents still have not been produced and are promised by Defendant. These Exhibits are too numerous to list individually. Offer PAGE 13/3111/23/2887 15:29 2819701 5at LAW OFFICES PAGE 14/31 |E NUMBER 2004-; MICROCHECK SYSTEMS, INC. AND MICROCHECK SOLUTIONS, INC. Plaintiffs, vs. ZIGROSSI & MURPHY, L.L.C., Individually and d/b/a EDUCATED SOLUTIONS; CHRIS ZIGROSSI; SCOTT MURPHY; MIKE SMITH Individually and d/b/a CMS TECHNOLOGY a/k/a CMS TECHNOLOGIES; MICHOICE TECHNOLOGY SYSTEMS, INC; JIM HAYDEN; ALEX CAMPBELL; AND JASON JABLECKI (0 CO COP A 2 80D UD U0 IP COD LD CLI LGD 60? 610 CN OD Defendants IN THE DISTRICT COURT OF HARRIS COUNTY, TEXAS FILED Theresa Ch, District Clark? NOV 29 2007 a _ 7 125™ JUDICIAL DISTRICT CHARGE OF THE COURT LADIES AND GENTLEMEN OF THE JURY: This case is submitted to you by asking questions about the facts, which you must decide from the evidence you have heard in this trial. You arc the sole judges of the credibility of the witnesses and the weight to be given their testimony, but in matters of law, you must be governed by the instructions in this charge. In discharging your responsibility on this.jury, you will observe all the instructions which have previously been given you. I shall now give you additional instructions which you should carefully and strictly follow during your deliberations. 1, Do not let bias, prejudice or sympathy play any part in your deliberations. 2. In arriving at your answers, consider only the evidence introduced here under oath and such exhibits, if any, as have been introduced for your consideration under the rulings of the court, that is, what you have seen and heard in this courtroom, together with the law as given you by the11/23/2887 15:29 2813701 pag LAW OFFICES ~ PAGE 15/31 Court. In your deliberations, you will not consider or discuss anything that is not represented by the evidence in this case. 3. Since every answer that is required by the charge is important, no juror should state or consider that any required answer is not important. 4. You must not decide who you think should win, and then try to answer the questions accordingly. Simply answer the questions, and do not discuss nor concern yourselves with the effect of your answers. 5. You will not decide the answer to a question by lot or by drawing straws, or by any other method of chance. Do not return a quotient verdict. A quotient verdict means that the jurors agree to abide by the result to be reached by adding together each juror’s figures and dividing by the number of jurors to get an average. Do not do any trading on your answers; that is, one juror should not agree to answer a certain question one way if others will agree to answer another question another way. 6. You may render your verdict upon the vote of ten or more members of the jury. The same ten ot more of you must agree upon all of the answers made and to the entire verdict. You will not, therefore, enter into an agreement to be bound by a majority or any other vote of less than ten jurors. If the verdict and all of the answers therein are reached by unanimous agreement, the presiding juror sball sign the verdict for the entire jury. If any juror disagrees as to any answer made by the verdict, those jurors who agree to all findings shall each sign the verdict. These instructions are given you because your conduct is subject to review the same as that of the witnesses, parties, attomeys and the judge. If it should be found that you have disregarded any of these instructions, it will be jury misconduct and it may require another trial by another jury; then all of our time will have been wasted.11/29/2887 15:29 281970168" LAW OFFICES PAGE 16/31 ~ The presiding juror or any other who observes a violation of the court's instructions shall immediately warn the one who is violating the same and caution the juror not to do so again. When words are used in this charge in a senso that varies from the meaning commonly understood, you are given a proper legal definition, which you are bound to accept in place of any other meaning. Answer "YES" or "NO" to all questions unless otherwise instructed. A "YES" answer must be based on a preponderance of the evidence. If you do not find that a preponderance of the evidence supports a "YES" answer, then answer "NO". The term “preponderance of the evidence” means the greater weight and degree of credible evidence admitted in this case, Whenever a question requires an answer other than "YES" or "NO," your answer must be based on a preponderance of the evidence. A fact may be established by direct evidence or by "CIRCUMSTANTIAL EVIDENCE” or both. A fact is established by direct evidence when proved by documentary evidence or by witnesses who saw the act done or heard the words spoken. A fact is established by CIRCUMSTANTIAL EVIDENCE when it may be fairly and reasonably inferred from other facts proved. QUESTION NO. 1 When Microcheck Systems, Inc. was formed did John Manning and Mike Smith enter into an agreement that John Manning would own 70% interest in the corporation and Mike Sraith would own 30%? Answer "Yes" or "No": If you answer “Yes” to Question No. 1, then only in that event answer Question 2. Otherwise, do not answer Question No. 2.11/29/2887 15:29 2619701 ARE LAW OFFICES ~ PAGE 17/31 QUESTION NO. 2. Did John Manning fail to comply with the agreement, if any? Answer "Yes" or "No": If you have answered “Yes” to Question 2, then only in that event answer Question No. 3. Otherwise, do not answer Question No. 3. QUESTION NO. 3, What sum of money paid down in cash would reasonably and fairly compensate Mike Smith for damages he sustained? Answer: QUESTION NO. 4. Did any of those named below slander Mike Smith? In answering this question, you should use the following definitions and instructions: “Slander” means to orally communicate to a third person a defamatory statement without legal excuse, A “defamatory statement” is a false statement that tends to harm the reputation of its subject, lowers the subject in the community’s estimation, deters third parties from associating with the subject, or exposes the subject to public ridicule. Answer “Yes” or “No.” John Manning: If you answered “Yes” to the prior question, then answer the following question. If you answered “No” for all those named in the prior question, do not answer the following question. Source: Cain vy. Hearst Corp., 878 §.W.2d 577, 580 (Tex. 1994). QUESTION NO. 5, Was the slander against Mike Smith slander per se? In answering this question, you should use the following definitions and instructions:_. 11/29/2087 15:29 2e19701 gee LAW OFFICES PAGE 18/31 You are instructed that a statement is slander per se when the statement injures a person or entity in their office, profession, or occupation. Answer “Yes” or “No,” Answer: Sourcs: Waisaith v. Lack's Stores, Inc., 474 8.W.2d 444, 445 n.2 (Tex. 1971). Bradbury v. Scott, 788 S.W.2d 31, 38 (Tex.App. — Hous. (1* Dist.} 1989, writ denied). T€ you answered “Yes” for any of those named in the Question No. 5, then answer the following question. If you answered “No” for all those named in the Question No, 5, do not answer the following question. Ss (0. What sum of money, if paid now in cash, would fairly and reasonably compensate Mike Smith for the slander? Consider the elements of damages listed below and none other. Consider each element separately. Do not award any sum of money on any element if you have otherwise, under some other element, awarded a sum of money for the same loss, That is, do not compensate twice for the same loss, if any, Do not include interest on any amount of damages you find. Answer separately, in dollars and cents, for damages, if any. a Injury to reputation sustained in the past. Answer: db. Injury to reputation that, in reasonable probability, Mike Smith will sustain in the future, Answer: G Lost income in the past. Answer: a Loss of income that, in reasonable probability, Mike Smith will sustain in the future. Answer: Source: PIC 80.1, 80.2, 80.1.5 Shearson Lehmann Hutton, Inc. vs. Tucker, 806 S.W.2d 914,922 (Tex. App. — Corpus Christi 1991, writ dism’d).11/29/2887 15:29 281970 at LAW OFFICES PAGE 19/31 After you retire to the jury room, you will select your own presiding juror. The first thing the presiding juror will do is to have this complete charge read aloud and then you will deliberate upon your answers to the questions asked. It is the duty of the presiding juror: 1. to preside during your deliberations; 2. to see that your deliberations are conducted in an orderly manner and in accordance with the instructions in this charge; 3. to write out and hand to the bailiff any communications conceming the case that you desirc to have delivered to the judge; A. to vote on the questions; 5. to write your answers on the questions in the spaces provided; and 6. to certify to your verdict in the space provided for the presiding juror’s signature or to obtain the signatures of all the jurors who agree with the verdict if your verdict is less than unanimous. You should not discuss the case with anyone, not even with other members of the jury, unless all of you are present and assembled in the jury room. Should anyone attempt to talk to you about the case before the verdict is returned, whether at the courthouse, at your home, or elsewhere, please inform the Judge of this fact, When you have answered all of the questions you are required to answer under the instructions of the Judge, and your presiding juror has placed your answers in the spaces provided, and signed the verdict as presiding juror or obtained the signatures, you will inform the bailiff at the doot of the jury room that you have reached a verdict, and then you will return into court with your verdict. JUDGE PRESIDING11/29/2887 15:29 2019701684 LAW OFFICES PAGE 20/31 CERTIFICATE We, the Jury, have answered the above and foregoing questions as herein indicated, and herewith retum same into court as our verdict. (To be signed by the presiding juror if unanimous.) Presiding Juror (To be signed by those rendering the verdict if not unanimous.)11/29/2887 15:29 2819701 jeg LAW OFFICES PAGE 21/31 -~ CERTIFICATE OF SERVICE I hereby certify that a true and correct copy of the above and foregoing instrument was forwarded to all counsel of record on November Copies to: Copy to: Christopher D. DeMeo State Bar No. 00796456 2500 Two Houston Center 909 Fannin St. Houston, Texas 77010 713/951-1000 713/951-1199 — fax J. Reid Perry, Attorney at Law 12850 Jones Road, #201 Houston, TX 77070 281.970.4175 Ph. 281.970.1664 Fax David P. Petersen $303 Southwest Erecway, Suite 810 Houston, TX 77074 713.779.8500 Ph. 713.779.8648 Fax11/29/2887 15:29 281970, 8R4 LAW OFFICES PAGE 22/31 CAUSE NUMBER 2004-59790 MICROCHECK SYSTEMS, INC. 4i § IN THE DISTRICT COURT OF MICROCHECK TECHNOLOGY SYSTEMS, 8 INC. H § Plaintify, § § vs. | § i § HARRIS COUNTY, TEXAS ZIGROSSI & MURPHY, L.L.C., Individually § FILED and d/b/a EDUCATED SOLUTIONS; CHRIS § Theresa Chan; ZIGROSSI, SCOTT MURPHY: MIKE § District Clore SMITH Individually and d/b/a CMS § TECHNOLOGY a/k/a CMS § NOY 29 2007 TECHNOLOGIES; MICHOICE 8 TECHNOLOGY SYSTEMS, INC; JIM 8 By. HAYDEN; ALEX CAMPBELL; AND § me JASON JABLECKI § Defendants i 125™ JUDICIAL DISTRICT DEFENDANT, MIKE SMITH’S SECOND AMENDED DEPOSITION & TESTIMONY EXCERPTS Here following are excerpts from the testimony of Chris Zierossi offered on November 17, 2004: Page Line Through Page Line 11 il - 13 13 15 4 - 15 1 16 17 - 16 22 17 12 - 17 18 19 1 - 19 - 4 29 14 - 29 25 33 20 - 34 9 37 5 - 37 13 38 5 - 39 11 41 2 - 4) 16 43 4 - 43 10 44 12 . 45 1 52 4 - 54 9 59 10 - 59 19 ere wing are exci ue S: *s testimony offt Page Line Through Page Line 33 24 - 25 34 1 : 1211/23/2087 15:29 2819701 pig LAW OFFICES PAGE 23/31 -~ 52 2 - 4 52 20 . 25 53 1 : | 10 50 8 - i 17 Here following are excerpts of Les Mignerey’s deposition offered on September 26, 2007. il | Page Line Through ‘Page Line 97 8 : 209 «10 219 6 . 236021 Here followi r ming’s depositi 2 Page Line Through Page Line11/29/2087 15:29 2819701 faq . LAW OFFICES PAGE 24/31 Canse No. 2004-59790 MICROCHECK SYSTEMS, INC. IN THE DISTRICT COURT OF AND MICROCHECK SOLUTIONS, INC. Plaintiffs Vs. ZIGROSSI & MURPHY, L.L.C. HARRIS COUNTY, TEXAS EDUCATED SOLUTIONS, FROST BANK, TEXAS, CHRIS ZIGROSSI, SCOTT MURPHY, MIKE SMITH, JIM HAYDEN, ALEX CAMPBELL, and JASON JABLECKI, i Defendants 125™ JUDICIAL DISTRICT DEFENDANT/ COUNTER PLAINTIFF, MIKE SMITH’S AMENDED MOTION IN LIMINE TO THE HONORABLE JUDGE OF SAID COURT: COMES NOW, MIKE SMITH AND MICHOICE, DEFENDANT AND COUNTER PLAINTIFF (“Defendant”) by and through their attorney of record, Roy Murphy, III in the above-entitled and numbered cause, and before commencement of the voir dire examination of the jury panel, respectfully moves that counsel for Plaintiff, and, through such opposing counsel, any and all witnesses, be instructed by appropriate order of this Honorable Court to refrain from making any mention or interrogation, directly or indirectly, in any manner whatsoever, including the offering of documentary evidence concerning any of the matters hereinafter set forth without first approaching the bench outside the hearing of all prospective jurors ultimately selected in this cause, in regard to any alleged theory of admissibility of such matter, to-wit: I. The matters set out would be inadmissible in evidence for any purpose on proper and timely objection in that they have no bearing or relevance on the issues in this case or the rights of the parties to this suit. In the alternative and without waiving the foregoing, Defendant would assert that such matters if found to have some relevance, would be inadmissible as the likelihood11/29/2087 15:29 2819701 ame LAW OFFICES PAGE 25/31 ~ of the prejudicial effect on Defendant would greatly outweigh any probative value to the fact finder. I. Permitting interrogation of witnesses, comments to jurors, of prospective jurors, or offers of evidence concerning any of these matters would prejudice the jury, and sustaining objections to such questions, statements, or evidence introduced by counsel or witnesses will not prevent prejudice, but will reinforce the development of questionable evidence. 1. References to the filing of this Motion in Limine by the Defendant and Counter-Plaintiff, or to any ruling by the Court in response to this Motion. Cody v, Mustang Oil Tool Co., Inc, 595 §.W.2d 214,216 (Tex. App.--Eastland 1980, writ refd n.r.e.) AGREED BY COUNSEL, GRANTED DENIED. 2. Any reference, comment or statement regarding the Defendant and Counter-Plaintiff's failure to call witnesses without showing that those witnesses are under Defendant's control. AGREED BY COUNSEL. GRANTED DENIED. 3. The Defendant's personal habits, such as drinking, smoking or drug habits, for the reason that there is no allegation or contention that the Defendant was intoxicated or under the influence of drugs at the time of the occurrence made the basis of this suit or that such may be relevant to the injuries Plaintiff suffered as a result of this collision. McCarty v. Gappelberg, 273 S.W.2d 943 (Tex. Civ. App., 1954, n.r.e.). AGREED BY COUNSEL, GRANTED DENIED. 4. That the counsel for the Plaintiff does not express their personal opinions regarding the case, Wallace y, Liberty Mutual Ins, Co., 413 S.W.2d 787 (Tex. Civ, App.—Houston, 1967, writ ref'd n.t.¢.).11/29/2887 15:29 281978 yq LAW OFFICES ~ PAGE 26/31 AGREED BY COUNSEL____——sGRANTED_CDENIED_ 5. That the Plaintiff not mention or state to the jury the probable testimony of a witness who is absent or unavailable and whojwas not called to testify in this cause. AGREED BY COUNSEL, GRANTED DENIED___ 6. That Plaintiff should not elicit or offer evidence or testimony from any witnesses, including experts, which have not been properly and timely designated pursuant to the Texas Rules of Civil Procedure, (TRCP 215). AGREED BY COUNSEL, GRANTED DENIED. 7. That counsel be prohibited from calling any person and questioning a witness as an expert in a specific area without first establishing or proving up that person as ah expert with scientific, technical or other specialized knowledge. Rule 702, Texas Rules of Evidence. AGREED BY COUNSEL GRANTED DENIED. 8. That the Plaintiff, or Plaintiffs counsel, refrain from referring to, displaying or |quoting from any books, treatises, articles, pamphlets, or lists without previously establishing that the items or documents were relied upon or deemed authoritative by an expert testifying in this case. AGREED BY COUNSEL, GRANTED DENIED. 9. Defendant’s previous marriage history as such is not relevant to any material issue. AGREED BY COUNSEL. GRANTED DENIED. 10. Offer any evidence which was not timely and properly disclosed; produced or answered in response to Defendant’s discovery requests in this case. AGREED BY COUNSEL. GRANTED DENIED. 11.‘ Refrain from mentioning to or asking a question regarding the financial status or ownership of assets or other properties or business or investments of Defendant or any11/29/2887 15:29 281970154 LAW OFFICES PAGE 27/31 ra “ entity owned or otherwise affiliated with Smith for the reason that such collateral financial matters are not relevant to any material issue in this lawsuit and the purpose would to prejudice and inflame the jury. TEX.R.EVID, 401-403. AGREED BY COUNSEL, GRANTED DENIED. 12. Refrain from referencing any or all objections made by Defendant in its answers to interrogatories, responses to request for production, at hearings or depositions, as well as any objections made by the Defendant in the above discovery proceedings as well as teferencing Defendant’s refusal to answer questions to which they made objections. The fact that the Defendant 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 Defendant. AGREED BY COUNSEL. GRANTED DENIED. 13. Refrain 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 Defendant, any entity owned or otherwise affiliated with Smith, 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 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.11/29/2887 15:29 2819701 aq LAW OFFICES PAGE 28/31 s AGREED BY COUNSEL, GRANTED CzDENIED_ 14. ‘Please refrain from eliciting any evidence or statement regarding the net worth of Defendant or any entity owned or otherwise affiliated with Smith, his financial circumstances or any similar information. The net worth of those named above is not relevant. AGREED BY COUNSEL. GRANTED DENIED____ 15. Refrain 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 Defendant. AGREED BY COUNSEL. GRANTED DENIED. 16. Any attempt by Plaintiffs attorneys to seek or request the attorneys for Defendant 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 Defendant in an awkward and embarrassing situation before the jury. A refusal on the part of Defendant would serve to generate prejudice, even though Defendant may be within his legal rights in making the refusal. AGREED BY COUNSEL GRANTED DENIED. 17, Any reference to the inability to take the deposition of Mike Smith. AGREED BY COUNSEL, GRANTED DENIED. 18. Refrain from stating to the jury panel or the jury that Tony Isaac, is an agreed upon expert, as he did at the time of the injunction hearing. To state this would be misleading and is highly prejudicial. Further, it is clear Tony Isaac has become an advocate against Mike Smith and MiChoice and in favor of the Plaintiff, Microcheck and John Manning.11/29/2087 15:29 2819701 me LAW OFFICES PAGE 29/31 ~n AGREED BY COUNSEL, GRANTED DENIED___ 19, Plaintiff and Plaintiffs witnesses should be instructed not to refer to an alleged settlement agreement between Scott Murphy, Chris Zigrossi and Microcheck without first approaching the bench before going into said settlement. The allegations of the settlement is highly prejudicial to the Defendant in this case and may not be admissible for purposes of determining damages in this case, but may only be admissible as to injunctive relief. Specifically, Defendant would ask the court to restrain the Plaintiff and his witnesses during the voir dire or opening statement, and before making any offerings in this regard to approach the bench. AGREED BY COUNSEL. GRANTED DENIED. 20. To refrain from stating to the jury that Tony Isaac is an agreed upon expert or to allude to the fact that he was a neutral third party expert, for the reason is it is simply not true. The circumstances under which Mr. Isaac was hired is subject to dispute or question, but at any rate, the Defendants feel they had a limited agreement for a very short period of time; and Mr. Isaac turned out to be an expert who champions the cause of the Plaintiff, Microcheck Systems, Inc. It would be totally unfair for Mr. Isaac to be referred to as a neutral or agreed upon expert. AGREED BY COUNSEL. GRANTED DENIED WHEREFORE, PREMISES CONSIDERED, Mike Smith and MiChoice Solutions, Inc. prays that the Court grant this Motion in Limine and also grants to other and further relicf to which it may show itself justly entitled. IT IS THE FINDING of the court that violation of this Order by Plaintiffs’ counsel or any of Plaintiffs’ witnesses would be likely to constitute undue harm to Defendant's case and to11/29/2087 15:29 2819701 pee LAW OFFICES PAGE 38/31 A deprive Defendant of a fair and impartial jury trial, and could lead to a mistrial or other sanctions, as justice might require. SIGNED this the day of, , 2007. JUDGE PRESIDING11/29/2887 15:29 2819781 78y LAW OFFICES PAGE 31/31 ~ CAUSE NUMBER 2004-59790 MICROCHECK SYSTEMS, INC. AND § IN THE DISTRICT COURT OF MICROCHECK SOLUTIONS, INC. § § Plaintiffs, § § VS. § 5 HARRIS COUNTY, TEXAS ZIGROSSI & MURPHY, L.L.C., Individually § ILED and d/b/a EDUCATED SOLUTIONS; CHRIS § Theresa Chang ZIGROSSI, SCOTT MURPHY; MIKE 8 District Clork SMITH Individually and d/b/a CMS § NOV 29 2007 TECHNOLOGY a/k/a CMS § TECHNOLOGIES; MICHOICE § as TECHNOLOGY SYSTEMS, INC; JIM § PY —_§——_ HAYDEN; ALEX CAMPBELL; AND § JASON JABLECKI 8 Defendants i 1257 JUDICIAL DISTRICT PLAINTIFF’S PROPOSED TRIAL SCHEDULE 1. It is my estimation that this case will require at least 2-1/2 weeks for trial.11/29/2887 15:29 2819701 fied LAW OFFICES ~ PAGE 982/31 ROY MURPHY & ASSOCIATES ATTORNEYS AT LAW 12850 JONES ROAD, SUITE 201 HOUSTON, TEXAS 77070 py ROY MURPHY, I IL E Ri : Tors D, 807.4400 BOARD CERTIFIED Pretreg Sit 2 1.074400 PERSONAL INJURY TRIAL LAW Nol ‘TEXAS BOARD OF LEGAL SPECIALIZATION V 29 apy 2389313468 Viat Fax Filing 2 November 29, 2007 ne Theresa Chang, District Clerk 201 Caroline, Civil Intake Houston, TX 77002 Re: Cause No. 2004-59790; Microcheck Systems, Inc. and Microcheck Solutions, Inc. vs. Zigrossi & Murphy, L.L.C., et al; In the 125th Judicial District Court of Harris County, Texas Dear Clerk: Please file the enclosed: DEFENDANT/COUNTER PLAINTIFF, MIKE SMITH’S AMENDED TRIAL PREPARATION ORDER. (X) Please stamp the date of filing on copy of this letter & pleading to signify filing of the above and retum it for my files. (X) All counsel have been sent a copy of same. Thank you for your prompt attention to this matter. Ce: Christopher DeMeo J. Reid Perry David Petersen