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

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Cause No. 2004-59790

MICROCHECK SYSTEMS, INC. IN THE DISTRICT COURT OF

16-18-67
AND MICROCHECK SOLUTIONS, INC. ‘
Plaintiffs

Vs.

ZIGROSSI & MURPHY, L.L.C.
EDUCATED SOLUTIONS,

FROST BANK, TEXAS,

CHRIS ZIGROSSI, SCOTT MURPHY,
MIKE SMITH, JIM HAYDEN,

ALEX CAMPBELL, and

JASON JABLECKI, ™
Defendants 125°" JUDICIAL DISTRICT
DEFENDANT, MIKE SMITH’S APPLICATION FOR LEAVE

TO FILE HIS THIRD AMENDED ANSWER BEYOND THE
DOCKET CONTROL CUT-OFF DATE

 

 

TO THE HONORABLE JUDGE OF SAID COURT:
NOW COMES, MIKE SMITH, (hereinafter referred to as “Smith”) one of the Defendants

in the referenced and titled cause, and files this his Motion for Application for Leave to file His
Third Amended Answer Beyond the Docket Control Cut-Off Date and in support of same would
respectfully show the Court the following:

1. Defendant would show that this lawsuit was filed on October 25, 2004, and Mike
Smith was named as a Defendant. Mr. Smith was not served, however, until January 25, 2005, and
filed an answer on January 31, 2005, at 9:29 a.m. From that date until August or September of
2007, virtually no discovery was conducted on this case with the exception of the exchange of
interrogatories, requests for production and request for disclosure. Since the last docket control
order was signed on August 11, 2006, citing February 1, 2007 as the deadline to file an amended
answer, many things have occurred. First and foremost this case has been reset twice since then.
Further, depositions did not commence until the deposition of Mike Smith and John Manning was

, i epee
| Bowestaken on September 12, 2007. Finally, the last deposition in this case was that of Les Mignerey and
was taken on September 26, 2007. A new attomey recently started representing MiChoice and
only associated himself as attorney of record about five (5) months ago.

2. Further, Roy Murphy, II, attomey for Mike Smith would show that he had extreme
health problems in the latter part of 2006, and the first part of 2007. In that regard, Mr. Murphy
was in the hospital for 14 days starting August 1, 2006 having heart by-pass surgery. Further, Mr.
Murphy was in the hospital February 22, 2007 having carotid artery surgery following a slight
stroke. The carotid artery surgery was performed on January 22, 2007 approximately eight (8) days’
before the old deadline to file an amended petition. Mr. Murphy was out of his office an aggregate
sum of six or seven months and totally following the January 22, 2007, carotid artery surgery and
was out of his office until mid-March 2007, which was past the cut-off date to amend pleadings of
February 1, 2007. After mid-March Mr. Murphy was back to his office and began working half
days, and did not get back in the full swing of things until approximately June or July 2007, at
which time he began soliciting help from additional lawyers to come into the case to aid and assist
him or possibly even substitute in his place.

3. The Defendants have now had a chance to review the depositions and discuss their
defenses in this case; and it is necessary to plead defenses previously not plead in this case and to
swear affirmatively pursuant to Rule 93 of the Tex. Rules of Civ. Proc. to defenses previously not
swom to which the Defendants feel would be applicable and which would further serve to promote
justice and fair play among the parties; and would not in any way act as a surprise to the Plaintiffs
in this case. Further, this amended pleading is permissible pursuant to Rule 63 and 166 of the
Texas Rules of Civil Procedure, and would serve as equity and justice.

‘WHEREFORE, PREMISES CONSIDERED, Defendant, Mike Smith, prays that this
Application for Leave be granted and that the Defendant be allowed to file his Third Amended
Original Answer.wad
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281.807.4400
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