Preview
NUMBER 2004-59790
MICROCHECK SYSTEMS, INC. AND § IN THE DISTRICT COURT OF
MICROCHECK SOLUTIONS, INC. §
§
Plaintiffs 8
§
vs. § HARRIS COUNBY, TE X AS
: FEM 5 oy
ZIGROSSI & MURPHY, L.L.C., § Bi Sacre
TEXAS EDUCATION SOLUTIONS = § JUN 4
FROST BANK, TEXAS, § 5 2007
CHRIS ZIGROSSI, SCOTT MURPHY, § Harris fn
MIKE SMITH, JIM HAYDEN, § by oie
ALEX CAMPBELL, and § m.
JASON JABLECKI, §
Defendants § 125™ JUDICIAL DISTRICT
TRIAL PREPARATION ORDER
TO THE HONORABLE JUDGE OF SAID COURT:
COMES NOW, SCOTT MURPHY, Defendant, and pursuant to this Court’s
February 6, 2007 Order, files this Trial Preparation Order and states as follows:
PARTY/ATTORNEY LIST
lL Plaintiffs, Microcheck Systems, Inc. and Microcheck Solutions, Inc.
Christopher D. DeMeo
Edward R. Perkins
SHEEHY, SERPE & WARE, P.C.
909 Fannin Street, Suite 2400
Houston, Texas 77010
Tel: (713) 951-1000
Fax: (713) 951-1199
2. Defendant, Scott Murphy:
Mr. J. Reid Perry
12850 Jones Road, Suite 201
Houston, Texas 77070
Tel: (281) 970-4175
Fax: (281) 970-1664
TRIAL PREPARATION ORDER Page J of 3an aN
3. Defendants, MiChoice Technology Systems, Inc. and Mike Smith, individually
and d/b/a CMT Technologies:
Mr. Roy Murphy, III
Roy Murphy & Associates
12850 Jones Road, Suite 201
Houston, Texas 77070
Tel: (281) 807-4400
Fax: (281) 970-1664
4. Defendant, Chris Zigrossi, PRO SE
335 Shea Dr.
Cedar Park, Texas 78613
TRIAL WITNESS LIST
Please see Exhibit “A”.
DRAFT JURY CHARGE
Please see Exhibit “B”.
EXHIBITS
Please see Exhibit “C”
DEPOSITION EXPERTS OR EDITED VIDEOTAPES
None - Will Supplement
MOTIONS IN LIMINE
Please see Exhibit “D”.
TRIAL SCHEDULING
Defendant estimates the trial will take ten trial days. At this time, Defendant is
aware of no scheduling conflicts or travel difficulties.
TRIAL PREPARATION ORDER Page 2 of 3Respectfully submitted,
J. Reid Perry
TBA #24037267
12850 Jones Road, Suite 201
Houston, Texas 77070
281-970-4175 Ph.
281-970-1664 Fax
Attorney for Defendant,
Scott Murphy
CERTIFICATE OF SERVICE
I hereby certify that a true and correct copy of the foregoing instrument has been
forwarded to all Counsel of Record, by fax and/or first clas» mail op, June A , 2007.
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
Roy Murphy Ill, Attorney at Law
12850 Jones Road, Suite 201
Houston, Texas 77070
Attorney for Defendant, Mike Smith
TRIAL PREPARATION ORDER
J. Reid Penny a
Page 3 of 3NUMBER 2004-59790
MICROCHECK SYSTEMS, INC. AND § IN THE DISTRICT COURT OF
MICROCHECK SOLUTIONS, INC.
Plaintiffs
VS. HARRIS COUNTY, TEXAS
ZIGROSSI & MURPHY, L.L.C.,
TEXAS EDUCATION SOLUTIONS
FROST BANK, TEXAS,
CHRIS ZIGROSSI, SCOTT MURPHY,
MIKE SMITH, JIM HAYDEN,
ALEX CAMPBELL, and
JASON JABLECKI,
Defendants
LD UD COP OD OD LOD HOD WO? OD LOD Ua OD aD
125™ JUDICIAL DISTRICT
DEFENDANT,
SCOTT MURPHY’S TRIAL WITNESS LIST
Pursuant to the Court’s Trial Preparation Order, Defendant, SCOTT MURPHY,
files the following as his Trial Witness List.
Respectfully submitted,
J. Reid Pe:
TBA #2 67
12850 Jones Road, Suite 201
Houston, Texas 77070
281-970-4175 Ph.
281-970-1664 Fax
Attorney for Defendant,
Scott Murphy
DEFENDANT, SCOTT MURPHY'S TRIAL WITNESS LIST Page 1 of 3
EXHIBIT “A”IL
Defendant, SCOTT MURPHY, expects to call and/or may call the following
witnesses during this case via live testimony, prior testimony or by record.
SUE and CHUCK SACCO
Have personal knowledge of inventory as it pertained to MicroCheck at the time
of the events in question; has general knowledge pertaining to this case.
SCOTT MURPHY
MIKE SMITH
CHRIS ZIGROSSI
Defendants in this suit
TONY ISAAC
Retained expert regarding computer issues.
LEE THWEATT
Has knowledge of personal and material facts as Educated Solutions’ former
attorney.
ROY MURPHY, OI
Has knowledge as to reasonable and necessary attorney’s fees.
J. REID PERRY
Has knowledge as to reasonable and necessary attorney’s fees.
W. LEO THEISS
Has knowledge as to reasonable and necessary attorney’s fees.
JIM HAYDEN
Has knowledge of personal and material facts — former Defendant.
DEFENDANT, SCOTT MURPHY’S TRIAL WITNESS LIST Page 2 of 3
EXHIBIT “A”ANDY SOUZA
Has knowledge of personal and material facts - current employee of
MiChoice.
DON NUNEZ
Has knowledge of personal and material facts - current employee of
MicroCheck Systems, Inc.
JOHN MANNING, Plaintiff, majority shareholder and principal owner of
MicroCheck Systems, Inc.
Has personal knowledge of Plaintiff's conduct in this matter.
i.
Defendant, SCOTT MURPHY, reserves the right to call in rebuttal any witnesses
not listed herein whose testimony could not reasonably be anticipated as of the filing of this
filing.
DEFENDANT, SCOTT MURPHY’S TRIAL WITNESS LIST Page 3 of 3
EXHIBIT “A”NUMBER 2004-59790
MICROCHECK SYSTEMS, INC. IN THE DISTRICT COURT OF
AND EDUCATED SYSTEMS &
SOLUTIONS, INC.
Plaintiffs
vs. HARRIS COUNTY, TEXAS
ZIGROSSI & MURPHY, L.L.C.,
TEXAS EDUCATION SOLUTIONS
FROST BANK, TEXAS,
CHRIS ZIGROSSI, SCOTT MURPHY,
MIKE SMITH, JIM HAYDEN,
ALEX CAMPBELL, and
JASON JABLECKI,
Defendants
LLP LP EP LP GP LP UI OP LN OD
125™ JUDICIAL DISTRICT
PROPOSED JURY CHARGE
Pursuant to the Court’s Trial Preparation Order, Defendant Scott Murphy files the
following Proposed Jury Charge.
TBA #24037267
12850 Jones Road, Suite 201
Houston, Texas 77070
281-970-4175 Ph.
281-970-1664 Fax
Attorney for Defendant,
Scott Murphy
PROPOSED JURY CHARGE Page 1 of 11
EXHIBIT “B”PROPOSED 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 are 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 the 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 or 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 shall 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, attorneys 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.
PROPOSED JURY CHARGE Page 2 of If
EXHIBIT “B”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 sense 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 unless otherwise instructed. 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 testimony or evidence introduced before you and 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 unless otherwise instructed.
PROPOSED JURY CHARGE Page 3 of 11
EXHIBIT “B”QUESTION __
Did Mike Smith, in his capacity as President of MicroCheck, and Scott Murphy and
Chris Zigrossi, individually agree that MicroCheck and Educated Solutions entered into
a one-year service Professional Services Agreement which allowed Educated Solutions
to service MicroCheck customers on behalf of MicroCheck?
In deciding whether the parties reached an agreement, you may consider what they
said and did in light of the surrounding circumstances, including any earlier course of
dealing. You may not consider the parties’ unexpressed thoughts or intentions.
A party’s conduct includes the conduct of another who acts with the party’s authority
or apparent authority.
Authority for another to act for a party must arise from the party’s agreement that the
other act on behalf and for the benefit of the party. If a party so authorizes another to
perform an act, that other party is also authorized to do whatever else is proper, usual,
and necessary to perform the act expressly authorized.
Apparent authority exists if a party (1) knowingly permits another to hold himself out
as having authority or, (2) through lack of ordinary care, bestows on another such
indications of authority that lead a reasonably prudent person to rely on the apparent
existence of authority to his detriment. Only the acts of the party sought to be charged
with responsibility for the conduct of another may be considered in determining whether
apparent authority exists.
Answer:
PROPOSED JURY CHARGE. Page 4 of 11
EXHIBIT “B”QUESTION
Did MicroCheck fail to comply with the agreement with Scott Murphy?
Answer:
QUESTION
Did MicroCheck fail to comply with the agreement with Chris Zigrossi?
Answer:
If your answer to Question [101.1] is “Yes,” then answer the following
question. Otherwise, do not answer the following question.
QUESTION
Was MicroCheck’s failure to comply excused?
Answer:
PROPOSED JURY CHARGE Page 5 of 11
EXHIBIT “B”QUESTION
Was The Professional Services Agreement ever properly terminated?
Answer:
PROPOSED JURY CHARGE Page 6 of 11
EXHIBIT “B”QUESTION
Did the breach of contract by MicroCheck result in injury to any of those named
below?
Answer Yes or No for each of the following:
Scott Murphy:
Chris Zigrossi:
Mike Smith:
PROPOSED JURY CHARGE Page 7 of I
EXHIBIT “B”If your answer to Question is “Yes,” for any of those named in that question,
then answer the following question. Otherwise, do not answer the following question.
QUESTION
What sum of money, if any, if paid now in cash, would fairly and reasonably
compensate Scott Murphy for his damages, if any, that were proximately caused by such
conduct?
Do not add any amount for interest on damages, if any.
Answer separately in dollars and cents for damages, if any.
a. That Scott Murphy sustained in the past.
Answer:
b. That, in reasonable probability, Scott Murphy will sustain in the future.
Answer: :
What sum of money, if any, if paid now in cash, would fairly and reasonably
compensate Chris Zigrossi for his damages, if any, that were proximately caused by such
conduct?
Do not add any amount for interest on damages, if any.
Answer separately in dollars and cents for damages, if any.
a. That Chris Zigrossi sustained in the past.
Answer:
b. That, in reasonable probability, Chris Zigrossi will sustain in the future.
Answer:
What sum of money, if any, if paid now in cash, would fairly and reasonably
compensate Scott Murphy for his damages, if any, that were proximately caused by such
Do not add any amount for interest on damages, if any.
Answer separately in dollars and cents for damages, if any.
PROPOSED JURY CHARGE Page 8 of 11
EXHIBIT “B”a. That Mike Smith in the past.
Answer:
b. That, in reasonable probability, Mike Smith will sustain in the future.
Answer:
PROPOSED JURY CHARGE Page 9 of 11
EXHIBIT “B”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.
2.
to preside during your deliberations,
to see that your deliberations are conducted in an orderly manner and in
accordance with the instructions in this charge,
to write out and hand to the bailiff any communications concerning the case
that you desire to have delivered to the judge,
to vote on the questions,
to write your answers to the questions in the spaces provided, and
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 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 door of the jury room that you have reached a verdict, and then
you will return into court with your verdict.
JUDGE PRESIDING
PROPOSED JURY CHARGE Page 10 of 11
EXHIBIT “B”Certificate
We, the jury, have answered the above and foregoing questions as herein indicated,
and herewith return 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.)
PROPOSED JURY CHARGE Page 11 of f1
EXHIBIT “B”NUMBER 2004-59790
IN THE DISTRICT COURT OF
MICROCHECK SYSTEMS, INC. AND §
MICROCHECK SOLUTIONS, INC.
Plaintiffs
vs.
ZIGROSSI & MURPHY, L.L.C.,
TEXAS EDUCATION SOLUTIONS
FROST BANK, TEXAS,
CHRIS ZIGROSSI, SCOTT MURPHY,
MIKE SMITH, JIM HAYDEN,
ALEX CAMPBELL, and
JASON JABLECKI,
Defendants
AOD GD OD CO? GP 0? 6? GR LO?
HARRIS COUNTY, TEXAS
125™ JUDICIAL DISTRICT
DEFENDANT,
SCOTT MURPHY’S EXHIBIT LIST
SM 1. Professional Services Agreement
SM 2. Email — Andy Souza to Scott Murphy,
10/07/2004
SM 3. Email — Chris Zigrossi to Lee Thweatt,
11/10/2004
SM 4. Email —Lee Thweatt to Zigrossi & Murphy,
11/2/2005
SM 5. Email — Scott Murphy to Lee Thweatt & Chris
Zigrossi; 12/03/2004
SM 6. MicroCheck Accountability, Reliability,
Solutions 4/24/05
SM 7. MicroCheck Accountability, Reliability,
Solutions 6/3/05
DEFENDANT, SCOTT MURPHY’S EXHIBIT LIST
OFFER
EXHIBIT “C”
Page 1 of 6SM 8.
SM 9.
SM 10.
SM 11,
SM 12.
SM 13.
SM 14.
SM 15.
SM 16.
SM 17.
SM 18.
SM 19.
Professional Services Agreement
Educated Solutions Employee Handbook
Letter — Education Solutions Form
(no addressee or date — begins with
“As of October 6, 2004...”
Certificate of Organization of Zigrossi and
Murphy, LLC
Email — Andy Souza to Scott Murphy;
10/07/2004
Letter — Educated Solutions employment
offer to Don Nunez
with proposed contract; 10/08/04
Educated Solutions, LLC — Field Services
Consultant and Help Desk Support
Position Description
(with proposed contract)
Education Solutions, LLC — Filed Services
Consultant and Help Desk Support
Position Description
Letter — Educated Solutions employment
offer to Jim Hayden (with proposed contract
and Project Manager Position Description);
10/8/2004
Letter — Educated Solutions employment
offer to Sue Sacco; 10/08/04
(with proposed contract)
Educated Solutions, LLC - Help Desk
Direction — Position Description
Letter — Educated Solutions employment
offer to Andy Souza; 10/08/04
(with proposed contract and Field Services
Consultant Position Description)
DEFENDANT, SCOTT MURPHY’S EXHIBIT LIST
EXHIBIT “C”
OFFER.
OFFE)
BJECT ADMIT
OBJE! ADMIT
Page 2 of 6SM 20.
SM 21.
SM 22.
SM 23.
SM 24.
SM 25.
SM 26.
SM 27.
SM 28.
SM 29.
SM 30.
SM 31.
SM 32.
SM 33.
Employment Contract — Zigrossi and
Murphy, LLC (d/b/a Educated Solutions)
and Scott Murphy
Educated Solutions — Hardware Support
Director Position Description
Zigrossi and Murphy, LLC (d/b/a
Educated Solutions) and Chris J. Zigrossi
Email — Lee Thweatt to Chris Zigrossi;
8/18/04
Email - Kirk Johnston to Chris Zigrossi;
10/09/04
Resignation — Susan Sacco to MicroCheck
Systems, Inc.; 10/11/04
Resignation — Donald J. Nunez to Mircocheck
Systems, Inc.; 10/11/04
Email - Chris Zigrossi to Lee Thweatt; 8/20/04
Email — Jim Hayden to Don, Sue; Andy Souza;
10/19/04
Articles of Organization for a Texas Limited
Liability Company Act —
Educated Solutions, LLC
Bylaws — Zigrossi and Murphy, LLC
Legal representation agreement letter —
Lee Thweatt to Educated Solutions; 10/21/04
Letter — Lee Thweatt to John Manning,
Mike Harssema, Microcheck Systems, Inc.;
10/22/04
Fax Letter — Lee Thweatt to F. Bady Sassin;
10/27/04
DEFENDANT, SCOTT MURPHY’S EXHIBIT LIST
EXHIBIT “C”
OBJECT
ADMIT
Page 3 of 6SM 34.
SM 35.
SM 36.
SM 37.
SM 38.
SM 39.
SM 40.
SM 41.
SM 42.
SM 43.
SM 44.
SM 45.
Letter — Lee Thweatt to Roy Murphy; 10/27/04
Letter —- Lee Thweatt to Chris
Zigrossi, Scott Murphy and Educated
Solutions with Temporary Restraining
Order attached; 10/27/04
Confirmation Report —- Lee Thweatt to
F. Bady Sassin; 11/2/04 (no attachment)
Email — Lee Thweatt to Zigrossi and Murphy;
11/2/05
Email — Chris Zigrossi to Lee Thweatt;
11/20/04
(with contact list attached)
Letter — Lee Thweatt to F. Bady Sassin;
11/22/04
Letter — Lee Thweatt to Chris Zigrossi, Scott
Murphy, Zigrossi & Murphy, LLC and
Educated Solutions; 11/23/04
(with billing as of November 10, 2004 attached)
Email — Scott Murphy to Lee Thweatt;
12/3/04
Affidavit of Scott Murphy with
Fax from Scott Murphy to Lee Thweatt;
12/3/04
Confirmation Report — Lee Thweatt to
Bob Buchholz; 10/21/05
(no attachment)
Letter — Robert S. Buchholz to Lee
Thweatt; 10/27/05
Letter — Lee Thweatt to Bob Buchholz;
4/22/05
DEFENDANT, SCOTT MURPHY’S EXHIBIT LIST
EXHIBIT “C”
Page 4 of 6OFFER OBJECT ADMIT
SM 46. Educated Solutions Profit & Loss; 10/06/04
through 9/30/05
SM 47. Educated Solutions Journal; 10/06/04 through
9/30/05
SM 48. Email from Bady to Lee to Scott —
Substantiation no agreement (Dec. 02, 2004)
SM 49. Email — Thweatt to Murphy, Zigrossi.
Judge did not enforce motion to compel
hearing on Dec. 6, 2004.
SM 50. Their idea of an agreement
SM 51. E.S. Member Agreement
SM 52. E. S. By-Laws
SM 53. E.S. Handbook, Trade Secret Agreement
Document
SM 54. E. S. Business Plan / Financial Planning
Information
SM 55. Letter of Intent between E. S. and Web
Lunch to Pursue Joint Venture
SM 56. List of actions by Scott Murphy while at
E. S. through November on behalf of
Microcheck.
SM 57. Silver Partner Agreement between E. S.
and Clear Path Networks making E. S. a VAR.
SM 58. Email — Zigrossi to Hayden, Souza, Murphy.
Despite TRO we continued to attempt to
operate within its parameters (Nov. 7, 2004).
DEFENDANT, SCOTT MURPHY’S EXHIBIT LIST Page Sof 6
EXHIBIT “C”OFFER) OBJECT ADMIT
SM 59. Email — Zigrossi to Murphy. Outlined
outcome of Multiple meetings with potential
E. S. business partners (Jan. 17, 2005).
SM 60. Email - Zigrossi to Murphy, Jablecki.
Scheduled meetings with potential customers
(Feb. 9, 2005).
SM 61. Email —Zigrossi to Murphy, Jablecki.
Despite legal issues, we continued to explore
legitimate opportunities with E. S.
(Feb. 10, 2005).
SM 62. Email — Zigrossi to Murphy, Jablecki.
Continued to explore legitimate opportunities
with E. S. (Feb. 22, 2005).
SM 63. Email — Zigrossi to Murphy, Jablecki.
Continued to explore legitimate opportunities
with E. S. (March 6, 2005).
SM 64. Email — Zigrossi to Murphy. “Pull the
Trigger “Buy Software”
DEFENDANT, SCOTT MURPHY'’S EXHIBIT LIST Page 6 of 6
EXHIBIT “C”NUMBER 2004-89790
MICROCHECK SYSTEMS, INC. IN THE DISTRICT COURT OF
AND EDUCATED SYSTEMS
& 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
HARRIS COUNTY, TEXAS
PR LN OD LP? OP OP WO? I OD?
Defendants 125™ JUDICIAL DISTRICT
DEFENDANT SCOTT MURPHY’S MOTION IN LIMINE
To The Honorable Judge of said Court:
NOW COMES SCOTT MURPHY, (hereinafter referred to as “Defendant”) one of the
Defendants in the referenced and titled cause, and individually files this his Defendant Scott
Murphy’s Motion in Limine, requesting the Court to instruct the Plaintiffs, the attorneys for the
Plaintiffs and through the attorneys for Plaintiffs all witnesses for the Plaintiffs, 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 acts without first approaching the bench and obtaining prior approval.
IL
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 likelihood of the
prejudicial effect on Defendant would greatly outweigh any probative value to the fact finder.
DEFENDANT, SCOTT MURPHY'S MOTION IN LIMINE. Page | of 5
EXHIBIT “D”I.
Permitting interrogation of witnesses, comments to jurors, or 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.
Ill.
The following matters would not be admissible for any purpose in this cause:
1. From mentioning, referring to, or asking questions regarding the purported
Settlement Agreement between MicroCheck and Scott Murphy, Chris Zigrossi,
and/or Educated Solutions, whether as to its existence, ratification, denouncement,
or any terms thereof. Tex R. Evid. 401, 403, 801, 802.
AGREED BY COUNSEL. GRANTED. DENIED
2. From referencing the anticipated or presumed testimony of any witness who is
absent, unavailable, or otherwise has not and will not be called to testify at the trial
of this cause. Tex. R. Evid. 401, 403, 801, 802.
AGREED BY COUNSEL GRANTED. DENIED.
3. From referencing any or all objections made by Defendants in its answers to
interrogatories, responses to requests for production, at hearings or depositions, as
well as any objections made by the Plaintiffs regarding any discovery proceedings
regarding Defendant’s refusal to answer questions to which they made objections.
The fact that Defendants made or filed objections and refused to answer questions
until such objections could be brought before the Court for a ruling on the merit is
meaningless, irrelevant, and immaterial to any issue in this case and as such would
be referred to only for the purpose of prejudicing the jury against Defendants. Tex.
R. Evid. 401 - 403.
AGREED BY COUNSEL. J GRANTED. DENIED.
4. From allowing counsel for Plaintiffs 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 hearsay testimony. Tex. R. Evid. 401, 403, 701.
AGREED BY COUNSEL. w GRANTED. DENIED.
DEFENDANT, SCOTT MURPHY’S MOTION IN LIMINE Page 2 of 5
EXHIBIT “D”5. From referencing this Motion in Limine or referring thereto, be it argument or
otherwise, that Defendants have sought to exclude any matter bearing on the issues
in this case or the rights of the parties to this lawsuit.
AGREED BY COUNSEL, GRANTED DENIED.
6. From making any reference or reading into the record of any ex parte statement or
report from any person not present in the courtroom that cannot be cross-examined
by Defendants.
AGREED BY COUNSEL. GRANTED DENIED
7. Any statement that 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.
AGREED BY COUNSEL. GRANTED DENIED.
8. Any attempt by Plaintiff's attorneys to seek or request the attorneys for Defendants
to produce documents, to stipulate to any facts, or to make any sort of agreement in
the presence of the jury.
AGREED BY COUNSEL, GRANTED. DENIED.
9. Any attempt to put ~—/ jury into any of the party’s shoes.
AGREED BY COUNSEL. GRANTED DENIED.
10. Any reference to the inability to bring any witness before the Court who resides
outside subpoena range.
AGREED BY COUNSEL. GRANTED DENIED.
11. Any reference to the inability to take any potential witness’ deposition if not
properly requested with va period.
AGREED BY COUNSEL, GRANTED. DENIED
DEFENDANT, SCOTT MURPHY’S MOTION IN LIMINE Page 3 of 5
EXHIBIT “D”“~ ~
12. That Defendants have been involved in any other lawsuit or have settled any claim.
Defendants have in fact not filed or defended any other lawsuits relevant to the
issues of this case. Employers Cas. C. v. Peterson, 609 S.W.2d 579, 585 (Tex.
App.—Dallas 1980, no writ)
4
AGREED BY COUNSEL. GRANTED DENIED
13. That Defendants have been accused of, or, in fact found guilty of any misconduct,
or criminal indictment or conviction. The mere questioning of the Defendants
concerning any alleged crime or misconduct would be incurably prejudicial even
though objections were timely made and sustained. Hill_v. Dons, 37 S.W. 638
(Tex. Civ. App.—1896), peugh fe wrercg dirtier Tees Grr
AGREED BY COUNSEL, GRANTED a DENIED.
14, That counsel for Plaintiffs do not express their personal opinions regarding the
case. Wallace v. Liberty Mutual Ins. Co., 413 S.W.2d 787 (Tex. Civ. App.—
Houston, 1967, writ ref’d n.r.e.)
Ww
15. The time or circumstances under which the Defendants employed their attorneys.
Houston & T C RY. V. Johnson, 103 Tex. 320, 127 S.W. 530, (1910)
wW
16. That Plaintiffs should not elicit any evidence 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
AGREED BY COUNSEL. GRANTED. DENIED.
AGREED BY COUNSEL. GRANTED DENIED.
17. 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 an
expert with scientific, technical or other specialized knowledge. Rule 702, Texas
Rules of Evidence. S
AGREED BY COUNSEL, GRANTED. DENIED
18. Any attempt to read from, i to or offer into evidence the Plaintiff's pleadings.
AGREED BY COUNSEL. GRANTED. DENIED.
DEFENDANT, SCOTT MURPHY'S MOTION IN LIMINE Page 4 of 5
EXHIBIT “D”~“ ~
19. 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.
AGREED BY COUNSEL. GRANTED DENIED.
WHEREFORE, PREMISES CONSIDERED, Scott Murphy, Defendant, prays that the
Court grant this Motion in Limine and also grants to other and further relief 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 to 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 PRESIDING
DEFENDANT, SCOTT MURPHY’S MOTION IN LIMINE Page 5 of S
EXHIBIT “D”
Preview
NUMBER 2004-59790 MICROCHECK SYSTEMS, INC. AND § IN THE DISTRICT COURT OF MICROCHECK SOLUTIONS, INC. § § Plaintiffs 8 § vs. § HARRIS COUNBY, TE X AS : FEM 5 oy ZIGROSSI & MURPHY, L.L.C., § Bi Sacre TEXAS EDUCATION SOLUTIONS = § JUN 4 FROST BANK, TEXAS, § 5 2007 CHRIS ZIGROSSI, SCOTT MURPHY, § Harris fn MIKE SMITH, JIM HAYDEN, § by oie ALEX CAMPBELL, and § m. JASON JABLECKI, § Defendants § 125™ JUDICIAL DISTRICT TRIAL PREPARATION ORDER TO THE HONORABLE JUDGE OF SAID COURT: COMES NOW, SCOTT MURPHY, Defendant, and pursuant to this Court’s February 6, 2007 Order, files this Trial Preparation Order and states as follows: PARTY/ATTORNEY LIST lL Plaintiffs, Microcheck Systems, Inc. and Microcheck Solutions, Inc. Christopher D. DeMeo Edward R. Perkins SHEEHY, SERPE & WARE, P.C. 909 Fannin Street, Suite 2400 Houston, Texas 77010 Tel: (713) 951-1000 Fax: (713) 951-1199 2. Defendant, Scott Murphy: Mr. J. Reid Perry 12850 Jones Road, Suite 201 Houston, Texas 77070 Tel: (281) 970-4175 Fax: (281) 970-1664 TRIAL PREPARATION ORDER Page J of 3an aN 3. Defendants, MiChoice Technology Systems, Inc. and Mike Smith, individually and d/b/a CMT Technologies: Mr. Roy Murphy, III Roy Murphy & Associates 12850 Jones Road, Suite 201 Houston, Texas 77070 Tel: (281) 807-4400 Fax: (281) 970-1664 4. Defendant, Chris Zigrossi, PRO SE 335 Shea Dr. Cedar Park, Texas 78613 TRIAL WITNESS LIST Please see Exhibit “A”. DRAFT JURY CHARGE Please see Exhibit “B”. EXHIBITS Please see Exhibit “C” DEPOSITION EXPERTS OR EDITED VIDEOTAPES None - Will Supplement MOTIONS IN LIMINE Please see Exhibit “D”. TRIAL SCHEDULING Defendant estimates the trial will take ten trial days. At this time, Defendant is aware of no scheduling conflicts or travel difficulties. TRIAL PREPARATION ORDER Page 2 of 3Respectfully submitted, J. Reid Perry TBA #24037267 12850 Jones Road, Suite 201 Houston, Texas 77070 281-970-4175 Ph. 281-970-1664 Fax Attorney for Defendant, Scott Murphy CERTIFICATE OF SERVICE I hereby certify that a true and correct copy of the foregoing instrument has been forwarded to all Counsel of Record, by fax and/or first clas» mail op, June A , 2007. 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 Roy Murphy Ill, Attorney at Law 12850 Jones Road, Suite 201 Houston, Texas 77070 Attorney for Defendant, Mike Smith TRIAL PREPARATION ORDER J. Reid Penny a Page 3 of 3NUMBER 2004-59790 MICROCHECK SYSTEMS, INC. AND § IN THE DISTRICT COURT OF MICROCHECK SOLUTIONS, INC. Plaintiffs VS. HARRIS COUNTY, TEXAS ZIGROSSI & MURPHY, L.L.C., TEXAS EDUCATION SOLUTIONS FROST BANK, TEXAS, CHRIS ZIGROSSI, SCOTT MURPHY, MIKE SMITH, JIM HAYDEN, ALEX CAMPBELL, and JASON JABLECKI, Defendants LD UD COP OD OD LOD HOD WO? OD LOD Ua OD aD 125™ JUDICIAL DISTRICT DEFENDANT, SCOTT MURPHY’S TRIAL WITNESS LIST Pursuant to the Court’s Trial Preparation Order, Defendant, SCOTT MURPHY, files the following as his Trial Witness List. Respectfully submitted, J. Reid Pe: TBA #2 67 12850 Jones Road, Suite 201 Houston, Texas 77070 281-970-4175 Ph. 281-970-1664 Fax Attorney for Defendant, Scott Murphy DEFENDANT, SCOTT MURPHY'S TRIAL WITNESS LIST Page 1 of 3 EXHIBIT “A”IL Defendant, SCOTT MURPHY, expects to call and/or may call the following witnesses during this case via live testimony, prior testimony or by record. SUE and CHUCK SACCO Have personal knowledge of inventory as it pertained to MicroCheck at the time of the events in question; has general knowledge pertaining to this case. SCOTT MURPHY MIKE SMITH CHRIS ZIGROSSI Defendants in this suit TONY ISAAC Retained expert regarding computer issues. LEE THWEATT Has knowledge of personal and material facts as Educated Solutions’ former attorney. ROY MURPHY, OI Has knowledge as to reasonable and necessary attorney’s fees. J. REID PERRY Has knowledge as to reasonable and necessary attorney’s fees. W. LEO THEISS Has knowledge as to reasonable and necessary attorney’s fees. JIM HAYDEN Has knowledge of personal and material facts — former Defendant. DEFENDANT, SCOTT MURPHY’S TRIAL WITNESS LIST Page 2 of 3 EXHIBIT “A”ANDY SOUZA Has knowledge of personal and material facts - current employee of MiChoice. DON NUNEZ Has knowledge of personal and material facts - current employee of MicroCheck Systems, Inc. JOHN MANNING, Plaintiff, majority shareholder and principal owner of MicroCheck Systems, Inc. Has personal knowledge of Plaintiff's conduct in this matter. i. Defendant, SCOTT MURPHY, reserves the right to call in rebuttal any witnesses not listed herein whose testimony could not reasonably be anticipated as of the filing of this filing. DEFENDANT, SCOTT MURPHY’S TRIAL WITNESS LIST Page 3 of 3 EXHIBIT “A”NUMBER 2004-59790 MICROCHECK SYSTEMS, INC. IN THE DISTRICT COURT OF AND EDUCATED SYSTEMS & SOLUTIONS, INC. Plaintiffs vs. HARRIS COUNTY, TEXAS ZIGROSSI & MURPHY, L.L.C., TEXAS EDUCATION SOLUTIONS FROST BANK, TEXAS, CHRIS ZIGROSSI, SCOTT MURPHY, MIKE SMITH, JIM HAYDEN, ALEX CAMPBELL, and JASON JABLECKI, Defendants LLP LP EP LP GP LP UI OP LN OD 125™ JUDICIAL DISTRICT PROPOSED JURY CHARGE Pursuant to the Court’s Trial Preparation Order, Defendant Scott Murphy files the following Proposed Jury Charge. TBA #24037267 12850 Jones Road, Suite 201 Houston, Texas 77070 281-970-4175 Ph. 281-970-1664 Fax Attorney for Defendant, Scott Murphy PROPOSED JURY CHARGE Page 1 of 11 EXHIBIT “B”PROPOSED 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 are 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 the 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 or 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 shall 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, attorneys 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. PROPOSED JURY CHARGE Page 2 of If EXHIBIT “B”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 sense 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 unless otherwise instructed. 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 testimony or evidence introduced before you and 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 unless otherwise instructed. PROPOSED JURY CHARGE Page 3 of 11 EXHIBIT “B”QUESTION __ Did Mike Smith, in his capacity as President of MicroCheck, and Scott Murphy and Chris Zigrossi, individually agree that MicroCheck and Educated Solutions entered into a one-year service Professional Services Agreement which allowed Educated Solutions to service MicroCheck customers on behalf of MicroCheck? In deciding whether the parties reached an agreement, you may consider what they said and did in light of the surrounding circumstances, including any earlier course of dealing. You may not consider the parties’ unexpressed thoughts or intentions. A party’s conduct includes the conduct of another who acts with the party’s authority or apparent authority. Authority for another to act for a party must arise from the party’s agreement that the other act on behalf and for the benefit of the party. If a party so authorizes another to perform an act, that other party is also authorized to do whatever else is proper, usual, and necessary to perform the act expressly authorized. Apparent authority exists if a party (1) knowingly permits another to hold himself out as having authority or, (2) through lack of ordinary care, bestows on another such indications of authority that lead a reasonably prudent person to rely on the apparent existence of authority to his detriment. Only the acts of the party sought to be charged with responsibility for the conduct of another may be considered in determining whether apparent authority exists. Answer: PROPOSED JURY CHARGE. Page 4 of 11 EXHIBIT “B”QUESTION Did MicroCheck fail to comply with the agreement with Scott Murphy? Answer: QUESTION Did MicroCheck fail to comply with the agreement with Chris Zigrossi? Answer: If your answer to Question [101.1] is “Yes,” then answer the following question. Otherwise, do not answer the following question. QUESTION Was MicroCheck’s failure to comply excused? Answer: PROPOSED JURY CHARGE Page 5 of 11 EXHIBIT “B”QUESTION Was The Professional Services Agreement ever properly terminated? Answer: PROPOSED JURY CHARGE Page 6 of 11 EXHIBIT “B”QUESTION Did the breach of contract by MicroCheck result in injury to any of those named below? Answer Yes or No for each of the following: Scott Murphy: Chris Zigrossi: Mike Smith: PROPOSED JURY CHARGE Page 7 of I EXHIBIT “B”If your answer to Question is “Yes,” for any of those named in that question, then answer the following question. Otherwise, do not answer the following question. QUESTION What sum of money, if any, if paid now in cash, would fairly and reasonably compensate Scott Murphy for his damages, if any, that were proximately caused by such conduct? Do not add any amount for interest on damages, if any. Answer separately in dollars and cents for damages, if any. a. That Scott Murphy sustained in the past. Answer: b. That, in reasonable probability, Scott Murphy will sustain in the future. Answer: : What sum of money, if any, if paid now in cash, would fairly and reasonably compensate Chris Zigrossi for his damages, if any, that were proximately caused by such conduct? Do not add any amount for interest on damages, if any. Answer separately in dollars and cents for damages, if any. a. That Chris Zigrossi sustained in the past. Answer: b. That, in reasonable probability, Chris Zigrossi will sustain in the future. Answer: What sum of money, if any, if paid now in cash, would fairly and reasonably compensate Scott Murphy for his damages, if any, that were proximately caused by such Do not add any amount for interest on damages, if any. Answer separately in dollars and cents for damages, if any. PROPOSED JURY CHARGE Page 8 of 11 EXHIBIT “B”a. That Mike Smith in the past. Answer: b. That, in reasonable probability, Mike Smith will sustain in the future. Answer: PROPOSED JURY CHARGE Page 9 of 11 EXHIBIT “B”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. 2. to preside during your deliberations, to see that your deliberations are conducted in an orderly manner and in accordance with the instructions in this charge, to write out and hand to the bailiff any communications concerning the case that you desire to have delivered to the judge, to vote on the questions, to write your answers to the questions in the spaces provided, and 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 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 door of the jury room that you have reached a verdict, and then you will return into court with your verdict. JUDGE PRESIDING PROPOSED JURY CHARGE Page 10 of 11 EXHIBIT “B”Certificate We, the jury, have answered the above and foregoing questions as herein indicated, and herewith return 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.) PROPOSED JURY CHARGE Page 11 of f1 EXHIBIT “B”NUMBER 2004-59790 IN THE DISTRICT COURT OF MICROCHECK SYSTEMS, INC. AND § MICROCHECK SOLUTIONS, INC. Plaintiffs vs. ZIGROSSI & MURPHY, L.L.C., TEXAS EDUCATION SOLUTIONS FROST BANK, TEXAS, CHRIS ZIGROSSI, SCOTT MURPHY, MIKE SMITH, JIM HAYDEN, ALEX CAMPBELL, and JASON JABLECKI, Defendants AOD GD OD CO? GP 0? 6? GR LO? HARRIS COUNTY, TEXAS 125™ JUDICIAL DISTRICT DEFENDANT, SCOTT MURPHY’S EXHIBIT LIST SM 1. Professional Services Agreement SM 2. Email — Andy Souza to Scott Murphy, 10/07/2004 SM 3. Email — Chris Zigrossi to Lee Thweatt, 11/10/2004 SM 4. Email —Lee Thweatt to Zigrossi & Murphy, 11/2/2005 SM 5. Email — Scott Murphy to Lee Thweatt & Chris Zigrossi; 12/03/2004 SM 6. MicroCheck Accountability, Reliability, Solutions 4/24/05 SM 7. MicroCheck Accountability, Reliability, Solutions 6/3/05 DEFENDANT, SCOTT MURPHY’S EXHIBIT LIST OFFER EXHIBIT “C” Page 1 of 6SM 8. SM 9. SM 10. SM 11, SM 12. SM 13. SM 14. SM 15. SM 16. SM 17. SM 18. SM 19. Professional Services Agreement Educated Solutions Employee Handbook Letter — Education Solutions Form (no addressee or date — begins with “As of October 6, 2004...” Certificate of Organization of Zigrossi and Murphy, LLC Email — Andy Souza to Scott Murphy; 10/07/2004 Letter — Educated Solutions employment offer to Don Nunez with proposed contract; 10/08/04 Educated Solutions, LLC — Field Services Consultant and Help Desk Support Position Description (with proposed contract) Education Solutions, LLC — Filed Services Consultant and Help Desk Support Position Description Letter — Educated Solutions employment offer to Jim Hayden (with proposed contract and Project Manager Position Description); 10/8/2004 Letter — Educated Solutions employment offer to Sue Sacco; 10/08/04 (with proposed contract) Educated Solutions, LLC - Help Desk Direction — Position Description Letter — Educated Solutions employment offer to Andy Souza; 10/08/04 (with proposed contract and Field Services Consultant Position Description) DEFENDANT, SCOTT MURPHY’S EXHIBIT LIST EXHIBIT “C” OFFER. OFFE) BJECT ADMIT OBJE! ADMIT Page 2 of 6SM 20. SM 21. SM 22. SM 23. SM 24. SM 25. SM 26. SM 27. SM 28. SM 29. SM 30. SM 31. SM 32. SM 33. Employment Contract — Zigrossi and Murphy, LLC (d/b/a Educated Solutions) and Scott Murphy Educated Solutions — Hardware Support Director Position Description Zigrossi and Murphy, LLC (d/b/a Educated Solutions) and Chris J. Zigrossi Email — Lee Thweatt to Chris Zigrossi; 8/18/04 Email - Kirk Johnston to Chris Zigrossi; 10/09/04 Resignation — Susan Sacco to MicroCheck Systems, Inc.; 10/11/04 Resignation — Donald J. Nunez to Mircocheck Systems, Inc.; 10/11/04 Email - Chris Zigrossi to Lee Thweatt; 8/20/04 Email — Jim Hayden to Don, Sue; Andy Souza; 10/19/04 Articles of Organization for a Texas Limited Liability Company Act — Educated Solutions, LLC Bylaws — Zigrossi and Murphy, LLC Legal representation agreement letter — Lee Thweatt to Educated Solutions; 10/21/04 Letter — Lee Thweatt to John Manning, Mike Harssema, Microcheck Systems, Inc.; 10/22/04 Fax Letter — Lee Thweatt to F. Bady Sassin; 10/27/04 DEFENDANT, SCOTT MURPHY’S EXHIBIT LIST EXHIBIT “C” OBJECT ADMIT Page 3 of 6SM 34. SM 35. SM 36. SM 37. SM 38. SM 39. SM 40. SM 41. SM 42. SM 43. SM 44. SM 45. Letter — Lee Thweatt to Roy Murphy; 10/27/04 Letter —- Lee Thweatt to Chris Zigrossi, Scott Murphy and Educated Solutions with Temporary Restraining Order attached; 10/27/04 Confirmation Report —- Lee Thweatt to F. Bady Sassin; 11/2/04 (no attachment) Email — Lee Thweatt to Zigrossi and Murphy; 11/2/05 Email — Chris Zigrossi to Lee Thweatt; 11/20/04 (with contact list attached) Letter — Lee Thweatt to F. Bady Sassin; 11/22/04 Letter — Lee Thweatt to Chris Zigrossi, Scott Murphy, Zigrossi & Murphy, LLC and Educated Solutions; 11/23/04 (with billing as of November 10, 2004 attached) Email — Scott Murphy to Lee Thweatt; 12/3/04 Affidavit of Scott Murphy with Fax from Scott Murphy to Lee Thweatt; 12/3/04 Confirmation Report — Lee Thweatt to Bob Buchholz; 10/21/05 (no attachment) Letter — Robert S. Buchholz to Lee Thweatt; 10/27/05 Letter — Lee Thweatt to Bob Buchholz; 4/22/05 DEFENDANT, SCOTT MURPHY’S EXHIBIT LIST EXHIBIT “C” Page 4 of 6OFFER OBJECT ADMIT SM 46. Educated Solutions Profit & Loss; 10/06/04 through 9/30/05 SM 47. Educated Solutions Journal; 10/06/04 through 9/30/05 SM 48. Email from Bady to Lee to Scott — Substantiation no agreement (Dec. 02, 2004) SM 49. Email — Thweatt to Murphy, Zigrossi. Judge did not enforce motion to compel hearing on Dec. 6, 2004. SM 50. Their idea of an agreement SM 51. E.S. Member Agreement SM 52. E. S. By-Laws SM 53. E.S. Handbook, Trade Secret Agreement Document SM 54. E. S. Business Plan / Financial Planning Information SM 55. Letter of Intent between E. S. and Web Lunch to Pursue Joint Venture SM 56. List of actions by Scott Murphy while at E. S. through November on behalf of Microcheck. SM 57. Silver Partner Agreement between E. S. and Clear Path Networks making E. S. a VAR. SM 58. Email — Zigrossi to Hayden, Souza, Murphy. Despite TRO we continued to attempt to operate within its parameters (Nov. 7, 2004). DEFENDANT, SCOTT MURPHY’S EXHIBIT LIST Page Sof 6 EXHIBIT “C”OFFER) OBJECT ADMIT SM 59. Email — Zigrossi to Murphy. Outlined outcome of Multiple meetings with potential E. S. business partners (Jan. 17, 2005). SM 60. Email - Zigrossi to Murphy, Jablecki. Scheduled meetings with potential customers (Feb. 9, 2005). SM 61. Email —Zigrossi to Murphy, Jablecki. Despite legal issues, we continued to explore legitimate opportunities with E. S. (Feb. 10, 2005). SM 62. Email — Zigrossi to Murphy, Jablecki. Continued to explore legitimate opportunities with E. S. (Feb. 22, 2005). SM 63. Email — Zigrossi to Murphy, Jablecki. Continued to explore legitimate opportunities with E. S. (March 6, 2005). SM 64. Email — Zigrossi to Murphy. “Pull the Trigger “Buy Software” DEFENDANT, SCOTT MURPHY'’S EXHIBIT LIST Page 6 of 6 EXHIBIT “C”NUMBER 2004-89790 MICROCHECK SYSTEMS, INC. IN THE DISTRICT COURT OF AND EDUCATED SYSTEMS & 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 HARRIS COUNTY, TEXAS PR LN OD LP? OP OP WO? I OD? Defendants 125™ JUDICIAL DISTRICT DEFENDANT SCOTT MURPHY’S MOTION IN LIMINE To The Honorable Judge of said Court: NOW COMES SCOTT MURPHY, (hereinafter referred to as “Defendant”) one of the Defendants in the referenced and titled cause, and individually files this his Defendant Scott Murphy’s Motion in Limine, requesting the Court to instruct the Plaintiffs, the attorneys for the Plaintiffs and through the attorneys for Plaintiffs all witnesses for the Plaintiffs, 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 acts without first approaching the bench and obtaining prior approval. IL 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 likelihood of the prejudicial effect on Defendant would greatly outweigh any probative value to the fact finder. DEFENDANT, SCOTT MURPHY'S MOTION IN LIMINE. Page | of 5 EXHIBIT “D”I. Permitting interrogation of witnesses, comments to jurors, or 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. Ill. The following matters would not be admissible for any purpose in this cause: 1. From mentioning, referring to, or asking questions regarding the purported Settlement Agreement between MicroCheck and Scott Murphy, Chris Zigrossi, and/or Educated Solutions, whether as to its existence, ratification, denouncement, or any terms thereof. Tex R. Evid. 401, 403, 801, 802. AGREED BY COUNSEL. GRANTED. DENIED 2. From referencing the anticipated or presumed testimony of any witness who is absent, unavailable, or otherwise has not and will not be called to testify at the trial of this cause. Tex. R. Evid. 401, 403, 801, 802. AGREED BY COUNSEL GRANTED. DENIED. 3. From referencing any or all objections made by Defendants in its answers to interrogatories, responses to requests for production, at hearings or depositions, as well as any objections made by the Plaintiffs regarding any discovery proceedings regarding Defendant’s refusal to answer questions to which they made objections. The fact that Defendants made or filed objections and refused to answer questions until such objections could be brought before the Court for a ruling on the merit is meaningless, irrelevant, and immaterial to any issue in this case and as such would be referred to only for the purpose of prejudicing the jury against Defendants. Tex. R. Evid. 401 - 403. AGREED BY COUNSEL. J GRANTED. DENIED. 4. From allowing counsel for Plaintiffs 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 hearsay testimony. Tex. R. Evid. 401, 403, 701. AGREED BY COUNSEL. w GRANTED. DENIED. DEFENDANT, SCOTT MURPHY’S MOTION IN LIMINE Page 2 of 5 EXHIBIT “D”5. From referencing this Motion in Limine or referring thereto, be it argument or otherwise, that Defendants have sought to exclude any matter bearing on the issues in this case or the rights of the parties to this lawsuit. AGREED BY COUNSEL, GRANTED DENIED. 6. From making any reference or reading into the record of any ex parte statement or report from any person not present in the courtroom that cannot be cross-examined by Defendants. AGREED BY COUNSEL. GRANTED DENIED 7. Any statement that 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. AGREED BY COUNSEL. GRANTED DENIED. 8. Any attempt by Plaintiff's attorneys to seek or request the attorneys for Defendants to produce documents, to stipulate to any facts, or to make any sort of agreement in the presence of the jury. AGREED BY COUNSEL, GRANTED. DENIED. 9. Any attempt to put ~—/ jury into any of the party’s shoes. AGREED BY COUNSEL. GRANTED DENIED. 10. Any reference to the inability to bring any witness before the Court who resides outside subpoena range. AGREED BY COUNSEL. GRANTED DENIED. 11. Any reference to the inability to take any potential witness’ deposition if not properly requested with va period. AGREED BY COUNSEL, GRANTED. DENIED DEFENDANT, SCOTT MURPHY’S MOTION IN LIMINE Page 3 of 5 EXHIBIT “D”“~ ~ 12. That Defendants have been involved in any other lawsuit or have settled any claim. Defendants have in fact not filed or defended any other lawsuits relevant to the issues of this case. Employers Cas. C. v. Peterson, 609 S.W.2d 579, 585 (Tex. App.—Dallas 1980, no writ) 4 AGREED BY COUNSEL. GRANTED DENIED 13. That Defendants have been accused of, or, in fact found guilty of any misconduct, or criminal indictment or conviction. The mere questioning of the Defendants concerning any alleged crime or misconduct would be incurably prejudicial even though objections were timely made and sustained. Hill_v. Dons, 37 S.W. 638 (Tex. Civ. App.—1896), peugh fe wrercg dirtier Tees Grr AGREED BY COUNSEL, GRANTED a DENIED. 14, That counsel for Plaintiffs do not express their personal opinions regarding the case. Wallace v. Liberty Mutual Ins. Co., 413 S.W.2d 787 (Tex. Civ. App.— Houston, 1967, writ ref’d n.r.e.) Ww 15. The time or circumstances under which the Defendants employed their attorneys. Houston & T C RY. V. Johnson, 103 Tex. 320, 127 S.W. 530, (1910) wW 16. That Plaintiffs should not elicit any evidence 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 AGREED BY COUNSEL. GRANTED. DENIED. AGREED BY COUNSEL. GRANTED DENIED. 17. 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 an expert with scientific, technical or other specialized knowledge. Rule 702, Texas Rules of Evidence. S AGREED BY COUNSEL, GRANTED. DENIED 18. Any attempt to read from, i to or offer into evidence the Plaintiff's pleadings. AGREED BY COUNSEL. GRANTED. DENIED. DEFENDANT, SCOTT MURPHY'S MOTION IN LIMINE Page 4 of 5 EXHIBIT “D”~“ ~ 19. 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. AGREED BY COUNSEL. GRANTED DENIED. WHEREFORE, PREMISES CONSIDERED, Scott Murphy, Defendant, prays that the Court grant this Motion in Limine and also grants to other and further relief 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 to 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 PRESIDING DEFENDANT, SCOTT MURPHY’S MOTION IN LIMINE Page 5 of S EXHIBIT “D”