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12/86/2005 14:49 2815487695, JMC HOMES
NO. 2004-59790
MICROCHECK SYSTEMS, INC. IN THE DISTRICT COURT
AND
EDUCATED SYSTEMS &
SOLUTIONS, INC.
Plaintiffs,
Vv. 125TH. JUDICIAL DISTRICT
ZIGROSSI & MURPHY, LLC,
EDUCATED SOLUTIONS,
FROST BANK, TEXAS, CHRIS
ZIGROSSI, SCOTT MURPHY,
MIKE SMITH, JIM HAYDEN
sALEX CAMPBELL
And JASON JABLECKI
Defendants. OF HARRIS COUNTY, TEXAS
COUNTER-DEFENDANT'S RESPONSE TO
FIRST SET OF INTERROGATORIES
OF THIRD PARTY PLAINTIFF MIKE SMITH
To: MIKE SMITH, Third Party Plaintiff, by and through Third Party Plaintiff's attorney
of record, Roy Murphy, IM. .
NOW COMES John D. Manning, Third Party Defendant, and responds to this Set of
Interrogatories propounded by MIKE SMITH pursuant to Rule 197 of the Texas Rules of Civil
Procedure,
Respectfully submitted
oy HALO Les .
ohn D, Manning, Third Party Defendant Bro Se
hk 40 B. North Houston Ave.
'140.N. Houston Ave.,
Humble, TX 77338
Tel. (280)540-7650
Pax. (281)540-7690ANSWERS TO INTERROGATORIES
1 State your name and date of birth, place of birth, current residential and business
addresses, social security number and Texas driver’s license number.
ANSWER: John D. Manning; August 4, 1942, Houston, Texas, 140 North Houston Ave., Suite
B., Humble, Texas; 462-60-2716. Object to providing driver’s license number, as such information
is irrelevant.
2. List all criminal arrests and charges ever filed against you, and give the cause number;
identities of all accused; court of jurisdiction; description of criminal charges; date and place of
arrest; plea made; date of trial and/or plea bargain; whether or not convicted and on what charges;
time served; date of release from confinement; whether or not granted pardon or arole, and ifso, date
pardon granted or parole was or will be successfully completed.
ANSWER: None.
3. List all civil case which you have been a party to, either Plaintiff, Defendant or Third
Party Defendant, other than the lawsuit made the basis of this litigation. Please provide the.cause
number; the state in which said cause of action is pending or was pending; what the general
allegations that were made against you or by you; and whether or not said civil cause of action has
been resolved.
ANSWER:
a. The discovery request is overly broad, lacks definition, or is not reasonably
limited in scope or time.
b. The burden or expense of compliance with the discovery request outweighs its
likely benefit, taking into account the needs of the case, the amount in controversy, the
parties’ resources, the importance of the issues at stake in this litigation, and the importance
of the proposed discovery request in resolving the issues.
c. The discovery request is unreasonably frivolous, oppressive, or harassing.
d. The discovery request asks for information that is not relevant and is not
reasonably calculated to lead to the discovery of admissible evidence.
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Subject to and without waiving the foregoing, John D. Manning is presently a party ina
divorce proceeding in Colorado. He was a defendant in a collection case in Harris County in
which he signed a personal guarantee on an account, and that matter has been resolved. He
does not have any material reflecting the cause number of that case.
4. State the name of every corporation in which you have held an ownership interest or
an office such as president or treasurer in the last ten years, the state and date said corporation was
incorporated, and what its principle business is or was that it has engaged in since its incorporation.
ANSWER:
a The discovery request is overly broad, lacks definition, or is not reasonably
limited in scope or time, and is an invasion of privacy.
b. The burden or expense of compliance with the discovery request outweighs its
likely benefit, taking into account the needs of the case, the amount in controversy, the
parties’ resources, the importance of the issues at stake in this litigation, and the importance
of the proposed discovery request in resolving the issues. : .
c The discovery request is unreasonably frivolous, oppressive, or harassing.
d. The discovery request asks for information that is not relevant and is not
reasonably calculated to lead to the discovery of admissible evidence.
Subject to and without waiving the foregoing, the only relevant matter inquired about is
Microcheck Systems, Inc., in which I am a shareholder and officer.
5. Please state all judgments which have been taken against you or any corporation
which you claim ownership in, or held an office, in the Jast ten years.
ANSWER:
a The information sought by the discovery request is obtainable from some
other source that is more convenient, less burdensome, or less expensive, and is an invasion
of privacy.
b. The burden or expense of compliance with the discovery request outweighs its
likely benefit, taking into account the needs of the case, the amount in controversy, the
partics' resources, the importance of the issues at stake in this litigation, and the importance
of the proposed discovery request in resolving the issues.
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PAGE 26
c The discovery request is unreasonably frivolous, oppressive, or harassing. ai .
da The discovery request asks for information that is not televant and is not
reasonably calculated to lead to the discovery of admissible evidence.
i!
6. Please state the name, address and telephone number of every person who has helped
you or who is helping you prepare your answers to these interrogatories.
ANSWER:
Objection as to invasion of privacy, Subject to said objection:
Les Mignerey, Microcheck Systems, Inc., 9777 West Gulf Bank, Houston, Texas
77040, Patrick Hubbard, 1306 Kingwood Dr., Kingwood, Texas 77339, 281-358-7035.
.
.
7. Please state the name, address, and telephone number of any person who has helped
you prepare the documents you have filed in this lawsuit as a pro se Third Party Defendant and pro
se Third Party Counter Plaintiff. They were typed by a clerk in the office. .
ANSWER:
The discovery request is overly broad, lacks definition, or is not reasonably limited in 4 }
scope or time. Objection is made to any interrogatories that inquire about “any,” “every,” Ly
“each,” “each and every,” or “all” occurrences, persons, documents, statements, and e
knowledge, to the cxtent that such inquiries reach, or would require Manning to invade or
reveal matters exempt from discovery under lawyer-client communications and investigative
privileges (“communication and things that are exempt”), and because generalization would
unfairly limit Manning’s presentation at the time of trial, K-Mart v. Sanderson, 937 S.W.2d.
429 (Tex.1966); (applying Texaco, Inc. v. Sanderson, 898 8.W.2d 813 (Tex. 1995); Dillard
Dept. Stores, Inc, v. Hall, 909 8.W.2d 491, 492 (Tex.1995) to interrogatories and other
discovery); and Loftin v, Martin, 776 $.W.2d 145, 148 (Tex.1989). Further, it invades
Manning's privacy. Subject to said objections:
Les Mignerey, Microcheck Systems, Inc., 9777 West Gulf Bank, Houston, Texas
770400.
8. Please state what John D. Manning's ownership interest in Mictocheck Systems, Inc. :
is or has been since its inception.
ANSWER: — 1000 shares of Common Stock.* 12/06/2005 14:40
9. State what the ownership interest of Counter-Defendant, Mike Smith, is or ever has
been in Microcheck Systems, Inc. since its inception.
ANSWER: None since its inception.
10. In your Counter-Claim which you filed against Mike Smith, you alleged that Mike
Smith was the corporate President of Microcheck Systems, Inc. Please state in detail, to the best of
your knowledge, when Mr. Smith became corporate president of Microcheck Systems, Inc., for what
period of time he served as President of Microcheck Systems, Inc., who appointed him to this
position or clected him to this position when and for what period of time, and what Mr. Smith's
duties were as President of Microcheck Systems, Inc. .
ANSWER:
.
.
a. The discovery request is overly broad, lacks definition, or is not reasonably
limited in scope or time. .
Subject to and without waiving the foregoing, Mr. Smith was elected President
in_1994 , and served until the time of his departure from the company in October,
2004. As president, he was to conduct the day to day affairs of Microcheck, supervise
employees, and follow the directions of the board of directors as to all major decisions of the
company. He was elected by the board of directors.
11. In your counter claim you allege that Mike Smith has failed to comply with his
fiduciary duty and usurped financial opportunities for his own personal gain. State in specific detail
every action on the part of Mike smith which you contend constituted a usurping of financial
opportunities for his own personal gain that belongs to Microcheck systems, Inc. Please further state
in dollars and cents the amount you claim that Mike Smith personally gained by these usurping
activities.
ANSWER:
a. The discovery request is overly broad, lacks definition, or is not reasonably
limited in scope or time.
Subject to and without waiving the foregoing, John D, Manning would show that Mike
Smith stole computers, an automobile, software, and related equipment from the offices of
a
28154076" JMG HOMES a) PAGE 07
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* 12/86/2885 14:48 28154076 }ia JMC HOMES r™ PAGE
Microcheck Systems, Inc.; he signed a check for $110,000.00, not authorized by the board of
directors to an unauthorized entity for a non-valuable business purpose; he diverted money age
from the corporation into a retirement account for his benefit and the benefit of others of his
choice without board of directors’ approval; he took customer lists and sales materials to
competing companies and passed off himself and the product as that ofhis own. His gain was
in the realm of $500,000.00.
it
12. In your counter petition you sate that Mike Smith's usurping financial opportunities
caused grave financial loss to Microcheck Systems, Inc. stock and to the value of the shares held by
John manning. Please state in specific details dollars and cents the current value you place on the
stock of Microcheck Systems, Inc.; and the value that you placed on the stock before the alleged
usurping activities by Mike Smith.
ANSWER:
a The discovery request is overly broad, lacks definition, or is not reasonably
limited in scope ortime. ‘
Subject to and without waiving the foregoing, John D. Manning would show that the current
value of Microcheck Systems, Inc. stock is less than $25,000.00. Before Mike’ Smith's
actions it was worth in excess of $1,000,000.00.
a
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L
13. In your counter claim you claim that mike Smith's usurping financial opportunities
caused grave financial loss to Microcheck Systems, Inc. stock. Please quantify in dollars and cents ”
the amount of loss you claim has occurred and how this loss occurred due to the usurping activities ue
you allege on the part of Mike Smith.
ANSW. ER: $1 000,000.00, See answer to No. 11 as to how it occurred,
14. Please state whether or not an agreement, whether oral or written ever exited between
John Manning and Mike Smith during the period of time that Mike Smith served as corporate
president of Microcheck Systems, Inc., setting out what the duties, responsibilities, and powers of
Mike Smith were as corporate president of Microcheck Systems, Inc., if so, please state your
understanding of what Smith’s duties, responsibilities, and corporate powers were as corporate
president of Microcheck Systems, Inc.
ANSWER:
a. The discovery request is overly broad, lacks definition, or is not reasonably” 12/86/2085 14:4@ 2e154076a—y SMC HOMES rN PAGE 29
limited in scope or time.
Subject to and without waiving the foregoing, no such agreement existed. See number 11 as
to his duties and responsibilities. His main responsibility was to look out of the well-being
of the company and abide by the decisions of the board of directors.
: ' '
15. Please state the total amount of financial capital which you invested in Microcheck
Systems, Inc. since its inception in 1984 to the present time.
ISWER:
a. The discovery request is overly broad, lacks definition, is not reasonably
limited in scope or time, is an invasion of privacy, and is not relevant.
Subject to and without waiving the foregoing, I estimate I invested over $1,000,000.00 over
the years. “
16. Please state the total amount of money in dollars and cents which you have been paid by
Microcheck Systems, Inc. since its inception in 1984 to the present time that you are
answering this intcrrogatory under oath.
ANSWER: a. The discovery request is overly broad, lacks definition, is not reasonably
limited in scope or time, is an invasion of privacy, and is not relevant.
Subject to and without waiving the foregoing, I do not know.
17. Please state in dollars and cents the total amount of moncy you are aware that
Microcheck Systems, Inc. has paid to any company you have an ownership interest in, such as JM
Management, JMC Homes, Microcheck Solutions and Educated Systems & Solutions, Inc. from the
time of Microcheck Systems, Inc. inception until the present time.
ANSWER:
a The discovery request is overly broad, lacks definition, or is not reasonably
limited in scope or time.
b. The burden or expense of compliance with the discovery request outweighs its
likely benefit, taking into account the needs of the case, the amount in controversy, the
parties' resources, the importance of the issues at stake in this litigation, and the importance
of the proposed discovery request in resolving the issues.
ae
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c. The discovery request is unreasonably frivolous, oppressive, or harassing.
a. The discovery request asks for information that is not relevant and is not
reasonably calculated to lead to the discovery of admissible evidence.
Subject to and without waiving the foregoing, I am not aware of any funds paid to any of the
companies mentioned. i
18. Please state the name, address and telephone number of all accountants, investerent
brokers, investment counselors, stock brokers, mutual fund brokers, CPA’s and attorneys you have
used for any purpose since January 1, 2000.
ANSWER:
a. The discovery request is overly broad, lacks definition, or is not reasonably
limited in scope or tirne. *
b. The discovery request is unreasonably frivolous, oppressive, or harassing.
c.. The discovery request asks for information that is not relevant and is not
reasonably calculated to lead to the discovery of admissible evidence.
d. The discovery request is an invasion of privacy.
19. Please state the name, address and telephone number of every person that you have
had a conversation with since October 1, 2004, regarding Mike Smith’s departure from Microcheck
Systems, Inc. and/or an alleged hostile and illegal takeover of Microcheck Systems, Inc.
ANSWER:
a The discovery request calls for information that is privileged, and that has
been or will be properly asserted under Texas Rule of Procedure 193.3.
Subject to said objection: Les Mignerey, Microcheck Systems, Inc., 9777 West
Gulf Bank, Houston, Texas 77040; Michacl Harssema, Attorncy, Robert Buchholz, Attorney,
Roy Murphy, UI, Ray Besser, accountant, various personnel at Microcheck Systems, Inc., and
my wife.
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PAGE 11
20. Please state the name, address and telephone number of every person you have
personally told that Mike Smith “fucked up” your company.
ANSWER: a. The discovery request is overly broad, lacks definition, or is
not reasonably limited in scope or time. Subject to and without waiving said objection,
Roy Murphy, ITl.at the time of the recent court conference in the jury room.. \
t
21, Please state the name, address and telephone number of every person you have
personally told that Scott Murphy “fucked up” your company.
ANSWER: a. The discovery request is overly broad, lacks definition, or is not reasonably limited in
scope or time. Subject to and without waiving said objection, None that I recall.
22. Please state the name, address and telephone number of everyone you have perspitally
told that Mike Smith, Scott Murphy, and Chris Zigrossi did something they shouldn't have done in
tegards to Microcheck Systems, Inc.
ANSWER:
a The discovery request calls for information that is privileged, and that has been or will be
properly asserted under Texas Rule of Procedure 193.3.
b. ‘The discovery request is overly broad, lacks definition, or is not reasonably limited in scope
or time. 2 ot
Subject to and without waiving the foregoing, Michael Harssema, Robert Buchholz, Les
Mignerey. :
at
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CERTIFICATE OF SERVICE
I certify that on December 5, 2005 a true and correct copy of Defendant's Responses to
Interrogatories was served to each person listed below by the method indicated,
Robert W. Buchholz
4131 N. Central Expressway #Suite 800
Dallas, Texas 75204
FAX: 214-754-5500
L. Lee Thweatt
Goforth, Lewis & Sanford
1111 Bagby, Suite 2200 .
Houston, Texas 77002 *
713-650-1669
Tom Stillwell
Fulbright & Jaworski, L.L.P.
1301 McKinney, Suite 5100
Houston, Texas 77010-3096
FAX: 713-651-5246
Roy Murphy, Ill
12527 Cypress .
North Houston, Suite 110
Cypress, Texas 77429
By FAX: 281-955-9922"12/06/2085 14:49 29154076
Ada 4076 5m
JMC HOMES oN
NO. 2004-59790
MICROCHECK SYSTEMS, INC.
AND.
EDUCATED SYSTEMS &
SOLUTIONS, INC.
Plaintiffs,
Vv.
ZIGROSSI & MURPHY, LLC, -
EDUCATED SOLUTIONS, FROST
BANK, TEXAS, CHRIS ZIGROSSI,
SCOTT MURPHY, MIKE SMITH,
JIM HAYDEN ,ALEX CAMPBELL
And JASON JABLECKI
Defendants.
IN THE DISTRICT COURT
125TH. JUDICIAL DISTRICT
CP OD UD UP UD thn COD UD UA LD ED UO LD
OF HARRIS COUNTY, TEXAS.
RD PARTY DEFENDANT'S RESPONSE TO
SECOND SET O)
OGATORIES
OF THIRD PARTY PLAINTIFF MIKE SMITH
To: MIKE SMITH, Third Party Plaintiff, by and through his attorney of record, Roy
Murphy, MI.
NOW COMES John D. Manning, Third Party Defendant, and responds to this Set of
Interrogatories propounded by MIKE SMITH pursuant to Rule 197 of the Texas Rules of Civil
Procedure.
Respectfully submitted,
DManning, Third Party Defendant, Pro Se
40 B/ North Houston Ave.,
mble, TX 77338
Tel. (280)540-7650
Fax. (281)540-7690
PAGE 13
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NSWERS TO INTERROGATORIES
1. State your name and date of birth, place of birth, current residential and business
addresses, social security nurober and Texas driver’s license number.
ANSWER: John D. Manning; August 4, 1942, Houston, Texas, 140 North Houston Ave., Suite
B., Humble, Texas; 462-60-2716. Object to providing driver's license number, as such information
is irrelevant. .
2. State why you changed the name of Microcheck Systems, Inc. to Microcheck
Solutions and Educated Systems and Solutions, Inc.?
ANSWER: The name was not “changed”. Microcheck Solutions, Inc. is a separate and distinct
corporation. .
3. Please state the name, address, and telephone number of persons you have personally
told that Mike Smith embezzled money from Microcheck Systems, Inc.
ANSWER:
a. The discovery request is overly broad, lacks definition, or is not reasonably
limited in scope or time.
Subject to and without waiving the foregoing, John D. Manning does not believe he told
anyone that “Mike Smith embezzled money from Microcheck Systems, Inc, other than
directly to his attorney, Roy Murphy.”
4. In your various pleadings you continuously use the word usurp or usurping. Please
define for us your understanding of what the word usurp means, or more specifically what you mean
when you allege that various parties have usurped corporate opportunities.
ANSWER:
a. The discovery request is overly broad, lacks definition, or is not reasonably
limited in scope or time, and does not specify which part of the question to answer.
14
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PAGE 15
Subject to and without waiving the foregoing, usurp means:
To seize, and hold in possession, by force, or without right, as to usurp a throne; to usurp the
prerogatives of the office of a patron is to oust or dispossess him; to commit forcible seizure
of place, power, functions, or the like, without right; to commit unjust encroachments;
In the context of this lawsuit, it js meant that Smith committed fraud and fraudulent
nondisclosure of the truth of his activities and the activities of those under him; he
fraudulently misrepresented his status with Microcheck, he committed fraud, he breached a
fiduciary duty; he failed to protect the value of the corporate stock; he schemed up plans td
cause a devaluation in corporate stock where he could take over the company; he
intentionally took corporate assets that the corporation needed in order to operate; he
intentionally committed reckless behavior and handling of corporate accounts and bank
account, and had full knowledge of the consequences of his actions; he intentionally
committed tortuous conduct; he was intentionally not diligent or prudent in managing
company business; he intentionally failed to discharge his duties as president; he
intentionally failed to act in good faith; he intentionally failed to exercise ordinary care; he
intentionally breached his duty of loyalty.
5. In your various pleadings you use the term usurping financial opportunities. Please
define for us your understanding of the definition of usurping financial opportunities. ..
ANSWER: 2. The discovery request is overly broad, lacks definition, or is not
reasonably limited in scope or time, and does not specify which part of the question to
answer.
Subject to and without waiving the foregoing, usurp means:
that Smith committed fraud and fraudulent nondisclosure of the truth of his activities and the
activities of those under him; he fraudulently misrepresented his status with Microcheck, he
committed fraud, he breached a fiduciary duty; he failed to protect the value of the corporate
stock; he schemed up plans to cause a devaluation in corporate stock where he could take
over the company; he took corporate assets that the corporation needed in order to operate;
he committed reckless behavior and handling of corporate accounts and bank account, and
had full knowledge of the consequences of his actions; he committed tortuous conduct; he
was not diligent or prudent in managing company business; he failed to discharge his duties
as president; he failed to act in good faith; he failed to exercise ordinary care; he breached his
duty of loyalty.
. 6. In a recent cross claim that you filed, you have sued Chris Zigrossi, Scott Murphy,
Jim Hayden, Alex Campbell, and Jason Jablecki. You have further alleged that all of these people
were employees of MicrocheckSystems, Inc, and owed a fiduciary relationship to Microcheck
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Systems, Inc. and its shareholder, John Manning. You further allege that all of these people usurped
corporate opportunities and usurped financial opportunities for their own personal gain when these
opportunities belonged to Microcheck Systems, Inc. Please state in detail:
a. The manner in which you contend that these five individuals usurped corporate opportunities; and
b. Please quantify in dollars and cents the amount of loss you claim has occurred due to the usurping
of financial opportunities by each of these individuals.
ses : f
ANSWER: a The discovery request is overly broad, lacks definition, or is ndt
reasonably limited in scope or time, and does not specify which part of the question to
answer.
Subject to and without waiving the foregoing, the parties committed fraud and fraudulent
nondisclosure of the truth of his activities and the activities of fellow workers; they
fraudulently misrepresented their status with Microcheck, the y committed fraud, breached a
fiduciary duty; failed to protect the valuc of the corporate stock; schemed up plans to cause a
devaluation in corporate stock where they could take over the company; they took corporate
assets that the corporation needed in order to operate; they committed reckless behavior and
handling of corporate accounts and bank account, and bad full knowledge of the
consequences of their actions; they committed tortuous conduct; they were not diligent or
prudent in handling company business; they failed to discharge their duties as employees;
they failed to act in good faith; they failed to exercise ordinary care; they breached their duty
of loyalty. 7
b. $1,000,000.00, jointly and severally.
7. Ina recent cross claira you filed, you have alleged that five individuals committed
fraud in their dealings and paid themselves unauthorized bonuses, diverted money to a retirement
account without director authorization, and took numerous computers, software and source codes of
products, products that Microcheck had sold, company customer lists and various documentation and
other company asscts valued at hundred of thousands of dollars to the new company and leaving
Microcheck Systems, Inc. devoid of any worthwhile assets and inventory or the ability to function as
an ongoing concern. Please break down in detail the percentage of fault, or fraud, or conversion of
funds that you assess to cach of these individual five cross defendants, Please quantify this in exact
amounts that you claim were converted and each amount you would attribute to cach of the five cross
defendants.
ANSWER:
The discovery request is overly broad, lacks definition, or is not reasonably limited in
scope or time. Objection is made to any interrogatories that inquire about “any,” “every,”
“each,” “each and every,” or “all” occurrences, persons, documents, statements, and
knowledge, to the extent that such inquiries reach, or would require Manning to invade or
reveal matters exempt from discovery under lawyer-client communications and investigative
Re
Ae+ 12/06/2 :
/ 08/2005, 14: 40__renseo7egg SMC HOMES
privileges (“communication and things that are exempt”), and because generalization would
unfairly limit Manning's presentation at the time of trial, K-Mart v. Sanderson, 937 8.W.2d
429 (Tex.1966); (applying Texaco, Inc, v. Sanderson, 898 S.W.2d 813 (Tex. 1995); Dillard
Dept. Stores, Inc, v. Hall, 909 8.W.2d 491, 492 (T ¢x.1995) to interrogatories and other
discovery); and Loftin v. Martin, 776 S.W.2d 145, 148 (Tex.1989). Further, it invades the
province of the jury. Subject to said objections:
Mike Smith, Chris Zigrossi, and Scott Murphy were involved in the conversion of
$110,000.00 cash, jointly and severally, as well as the other corporate property mentioned, ‘
8. Inarecent cross claim you filed, you have alleged that the cross defendants aided and
encouraged by Mike Smith and others. interfered with the business relationship and outstanding
contacts of Microcheck Systems, Inc. by causing confusion as to the ownership and name, stole
customer lists, contacted customers of Microcheck Systems, Inc. etc. Please state in detail what you
contend as to what each of these cross defendants did and further what you contend Mike Smith did
to:
a. Interfere with the business relationship and outstanding contacts of Microcheck Systems, Inc,.;
b. By causing confusion as to ownership and name; :
c. Who you alleged specifically stole customer lists, and who you allege specifically conjatted
customers of Microcheck Systems, Inc. or interfered with Micocheck Systems, Inc.’s access to its
business records, .
ANSWER:
The discovery request is overly broad, lacks definition, or is not reasonably limited in scope
or time. Objection is made to any interrogatories that inquire about “any,” “every,” “each,” “each
and every,” or “all” occurrences, persons, documents, statements, and knowledge, to the extent that
such inquiries reach, or would require Manning to invade or reveal matters exempt from discovery
under lawyer-client communications and investigative privileges (“communication and things that
are cxempt”), and because generalization would unfairly limit Manning’s presentation at the time of
tial, K-Mart v, Sanderson, 937 S.W.2d 429 (Tex.1966); (applying Texaco, Inc. v. Sanderson, 898
$.W.2d 813 (Tex. 1995); Dillard Dept. Stores, Inc. v. Hall, 909 8,W.2d 491, 492 (Tex.1995) to
interrogatories and other discovery); and Loftin v. Martin, 776 S.W.2d 145, 148 (Tex.1989).
Subject to said objections and without waving said objections, I would show that Smith,
Zigrossi and Murphy :
a. Cancelled pending business sales, contacted customers on behalf of other companies.
b. Passed off Microcheck advertising and products as that of other companies.
¢. Stole customer lists, contacted Microcheck customers, and destroyed Microcheck records.
d. Took company money and spent it for their own uses and purposes.
¢. Took company assets and converted them to their own personal use.
9. Please state whether or not a non-competition agreement has ever exitsted between
Microcheck Systems, Inc. and any of the following persons:
aX PAGE 17
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2
. Mike Smith
. Chris Zigrossi Pra
. Scott Murphy :
. Jim Hayden
. Alex Campbell
. Jason Jablecki
Aupwunn
ANSWER: None.
10. Inyour recent cross claims that you filed, you alleged you have suffered a loss ofone
million dollars ($1,000,000.00), for which amount you sue. Please quantify in detail bow you
arrived at your alleged one million dollar loss?
ANSWER:
.
a. The discovery request is overly broad, lacks definition, or is not reasSnably
limited in scope or time,
Subject to and without waiving the foregoing, when the monies are added up that were taken
from the company without directors’ consent, and the business that was lost as a result of lost
contracts, and the property that was lost, it reduces the company value by $1,000,000.00.
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11. Please state the total net profit according to the corporate records of Microcheck +
Systems, Inc. of Microchcck for the following years: 1996 through 2004. "y
ae
ANSWER:
a The discovery request is overly broad, lacks definition, or is not reasonably
limited in scope or time.
Subject to and without waiving the foregoing, John D. Manning does not have these records,
You would need to inquire of the corporation as to these figures.
12. Please state the name, address, and telephone number of any person who assists you
in answering these interrogatorics.. oy
ANSWER:
The discovery request is overly broad, lacks definition, or is not reasonably limited in
scope or time. Objection is made to any interrogatories that inquire about “any,” “every,”
“each,” “each and every,” or “all” occurrences, persons, documents, statements, and“12/06/2085 14:48 28154076 Sy JMC HOMES ~~ PAGE 19
knowledge, to the extent that such inquiries reach, or would require Manning to invade or
reveal matters exempt from discovery under lawyer-client communications and investigative at
privileges (“communication and things that are exempt”), and because generalization would .
unfairly limit Manning's presentation at the time of trial, K-Mart v. Sanderson, 937 $.W.2d
429 (Tex.1966); (applying Texaco, Inc. v. Sanderson, 898 S.W.2d 813 (Tex. 1995); Dillard
Dept. Stores, Inc. v, Hall, 909 $.W.2d 491, 492 (Tex.1995) to interrogatories and other
discovery); and Loftin v. Martin, 776 S.W.2d 145, 148 (Tex.1989). Further, it invades,
Manning’s privacy. Subject to said objections:
Les Mignerey, Microcheck Systems, Inc., 9777 West Gulf Bank, Houston, Texas
77040.
VERIFICATION
STATE OF TEXAS §
§
COUNTY OF HARRIS §
BEFORE ME, the undersigned authority, personally appe: gitttand D. Manging, yy Styted, o58 peter
upon oath, that the statements made in the ees vis Gare true and correct,
Oy Yt} bo
(9 D. Manning “
ae
ae
wee
SUBSCRIBED AND SWORN TO BEFORE ME on December 5, 2005, by John D.
Manning.
.
eet eee | Co UNOS OED
‘My Notary Comission Expires
Sopternber 06, 2009 Notary Public, State of Texas~ ~
CER’ CATE OF SERVICE
I certify that on December 5, 2005 a true and correct copy of Defendant's Responses to
Interrogatories was served to each person listed bel, re method indicated. the
; Manning, Plaintiff, Pro Se
Robert W. Buchholz
4)31 N. Central Expressway #Suite 800
Dallas, Texas 75204
FAX: 214-754-5500
L, Lee Thweatt
Goforth, Lewis & Sanford
1111 Bagby, Suite 2200
Houston,, Texas 77002 : .-
713-650-1669 .
Tom Stillwell : :
Fulbright & Jaworski, L.L.P. . !
1301 McKinney, Suite 5100 .
Houston, Texas 77010-3096
FAX: 713-651-5246
Roy Murphy, UI
12527 Cypress .
North Houston, Suite 110
Cypress, Texas 77429
By FAX: 281-955-9922
wee Oe
a eee
Preview
PAGE 94 yore we 12/86/2005 14:49 2815487695, JMC HOMES NO. 2004-59790 MICROCHECK SYSTEMS, INC. IN THE DISTRICT COURT AND EDUCATED SYSTEMS & SOLUTIONS, INC. Plaintiffs, Vv. 125TH. JUDICIAL DISTRICT ZIGROSSI & MURPHY, LLC, EDUCATED SOLUTIONS, FROST BANK, TEXAS, CHRIS ZIGROSSI, SCOTT MURPHY, MIKE SMITH, JIM HAYDEN sALEX CAMPBELL And JASON JABLECKI Defendants. OF HARRIS COUNTY, TEXAS COUNTER-DEFENDANT'S RESPONSE TO FIRST SET OF INTERROGATORIES OF THIRD PARTY PLAINTIFF MIKE SMITH To: MIKE SMITH, Third Party Plaintiff, by and through Third Party Plaintiff's attorney of record, Roy Murphy, IM. . NOW COMES John D. Manning, Third Party Defendant, and responds to this Set of Interrogatories propounded by MIKE SMITH pursuant to Rule 197 of the Texas Rules of Civil Procedure, Respectfully submitted oy HALO Les . ohn D, Manning, Third Party Defendant Bro Se hk 40 B. North Houston Ave. '140.N. Houston Ave., Humble, TX 77338 Tel. (280)540-7650 Pax. (281)540-7690ANSWERS TO INTERROGATORIES 1 State your name and date of birth, place of birth, current residential and business addresses, social security number and Texas driver’s license number. ANSWER: John D. Manning; August 4, 1942, Houston, Texas, 140 North Houston Ave., Suite B., Humble, Texas; 462-60-2716. Object to providing driver’s license number, as such information is irrelevant. 2. List all criminal arrests and charges ever filed against you, and give the cause number; identities of all accused; court of jurisdiction; description of criminal charges; date and place of arrest; plea made; date of trial and/or plea bargain; whether or not convicted and on what charges; time served; date of release from confinement; whether or not granted pardon or arole, and ifso, date pardon granted or parole was or will be successfully completed. ANSWER: None. 3. List all civil case which you have been a party to, either Plaintiff, Defendant or Third Party Defendant, other than the lawsuit made the basis of this litigation. Please provide the.cause number; the state in which said cause of action is pending or was pending; what the general allegations that were made against you or by you; and whether or not said civil cause of action has been resolved. ANSWER: a. The discovery request is overly broad, lacks definition, or is not reasonably limited in scope or time. b. The burden or expense of compliance with the discovery request outweighs its likely benefit, taking into account the needs of the case, the amount in controversy, the parties’ resources, the importance of the issues at stake in this litigation, and the importance of the proposed discovery request in resolving the issues. c. The discovery request is unreasonably frivolous, oppressive, or harassing. d. The discovery request asks for information that is not relevant and is not reasonably calculated to lead to the discovery of admissible evidence. te te wae wae12/86/2005 14:48 2815aa7e™% JMC HOMES ow Subject to and without waiving the foregoing, John D. Manning is presently a party ina divorce proceeding in Colorado. He was a defendant in a collection case in Harris County in which he signed a personal guarantee on an account, and that matter has been resolved. He does not have any material reflecting the cause number of that case. 4. State the name of every corporation in which you have held an ownership interest or an office such as president or treasurer in the last ten years, the state and date said corporation was incorporated, and what its principle business is or was that it has engaged in since its incorporation. ANSWER: a The discovery request is overly broad, lacks definition, or is not reasonably limited in scope or time, and is an invasion of privacy. b. The burden or expense of compliance with the discovery request outweighs its likely benefit, taking into account the needs of the case, the amount in controversy, the parties’ resources, the importance of the issues at stake in this litigation, and the importance of the proposed discovery request in resolving the issues. : . c The discovery request is unreasonably frivolous, oppressive, or harassing. d. The discovery request asks for information that is not relevant and is not reasonably calculated to lead to the discovery of admissible evidence. Subject to and without waiving the foregoing, the only relevant matter inquired about is Microcheck Systems, Inc., in which I am a shareholder and officer. 5. Please state all judgments which have been taken against you or any corporation which you claim ownership in, or held an office, in the Jast ten years. ANSWER: a The information sought by the discovery request is obtainable from some other source that is more convenient, less burdensome, or less expensive, and is an invasion of privacy. b. The burden or expense of compliance with the discovery request outweighs its likely benefit, taking into account the needs of the case, the amount in controversy, the partics' resources, the importance of the issues at stake in this litigation, and the importance of the proposed discovery request in resolving the issues. PAGE 85 the tte” 12/86/280! : | 1 5 14:48 28154076emy JMC HOMES “—N PAGE 26 c The discovery request is unreasonably frivolous, oppressive, or harassing. ai . da The discovery request asks for information that is not televant and is not reasonably calculated to lead to the discovery of admissible evidence. i! 6. Please state the name, address and telephone number of every person who has helped you or who is helping you prepare your answers to these interrogatories. ANSWER: Objection as to invasion of privacy, Subject to said objection: Les Mignerey, Microcheck Systems, Inc., 9777 West Gulf Bank, Houston, Texas 77040, Patrick Hubbard, 1306 Kingwood Dr., Kingwood, Texas 77339, 281-358-7035. . . 7. Please state the name, address, and telephone number of any person who has helped you prepare the documents you have filed in this lawsuit as a pro se Third Party Defendant and pro se Third Party Counter Plaintiff. They were typed by a clerk in the office. . ANSWER: The discovery request is overly broad, lacks definition, or is not reasonably limited in 4 } scope or time. Objection is made to any interrogatories that inquire about “any,” “every,” Ly “each,” “each and every,” or “all” occurrences, persons, documents, statements, and e knowledge, to the cxtent that such inquiries reach, or would require Manning to invade or reveal matters exempt from discovery under lawyer-client communications and investigative privileges (“communication and things that are exempt”), and because generalization would unfairly limit Manning’s presentation at the time of trial, K-Mart v. Sanderson, 937 S.W.2d. 429 (Tex.1966); (applying Texaco, Inc. v. Sanderson, 898 8.W.2d 813 (Tex. 1995); Dillard Dept. Stores, Inc, v. Hall, 909 8.W.2d 491, 492 (Tex.1995) to interrogatories and other discovery); and Loftin v, Martin, 776 $.W.2d 145, 148 (Tex.1989). Further, it invades Manning's privacy. Subject to said objections: Les Mignerey, Microcheck Systems, Inc., 9777 West Gulf Bank, Houston, Texas 770400. 8. Please state what John D. Manning's ownership interest in Mictocheck Systems, Inc. : is or has been since its inception. ANSWER: — 1000 shares of Common Stock.* 12/06/2005 14:40 9. State what the ownership interest of Counter-Defendant, Mike Smith, is or ever has been in Microcheck Systems, Inc. since its inception. ANSWER: None since its inception. 10. In your Counter-Claim which you filed against Mike Smith, you alleged that Mike Smith was the corporate President of Microcheck Systems, Inc. Please state in detail, to the best of your knowledge, when Mr. Smith became corporate president of Microcheck Systems, Inc., for what period of time he served as President of Microcheck Systems, Inc., who appointed him to this position or clected him to this position when and for what period of time, and what Mr. Smith's duties were as President of Microcheck Systems, Inc. . ANSWER: . . a. The discovery request is overly broad, lacks definition, or is not reasonably limited in scope or time. . Subject to and without waiving the foregoing, Mr. Smith was elected President in_1994 , and served until the time of his departure from the company in October, 2004. As president, he was to conduct the day to day affairs of Microcheck, supervise employees, and follow the directions of the board of directors as to all major decisions of the company. He was elected by the board of directors. 11. In your counter claim you allege that Mike Smith has failed to comply with his fiduciary duty and usurped financial opportunities for his own personal gain. State in specific detail every action on the part of Mike smith which you contend constituted a usurping of financial opportunities for his own personal gain that belongs to Microcheck systems, Inc. Please further state in dollars and cents the amount you claim that Mike Smith personally gained by these usurping activities. ANSWER: a. The discovery request is overly broad, lacks definition, or is not reasonably limited in scope or time. Subject to and without waiving the foregoing, John D, Manning would show that Mike Smith stole computers, an automobile, software, and related equipment from the offices of a 28154076" JMG HOMES a) PAGE 07 te on a ee, a8 * 12/86/2885 14:48 28154076 }ia JMC HOMES r™ PAGE Microcheck Systems, Inc.; he signed a check for $110,000.00, not authorized by the board of directors to an unauthorized entity for a non-valuable business purpose; he diverted money age from the corporation into a retirement account for his benefit and the benefit of others of his choice without board of directors’ approval; he took customer lists and sales materials to competing companies and passed off himself and the product as that ofhis own. His gain was in the realm of $500,000.00. it 12. In your counter petition you sate that Mike Smith's usurping financial opportunities caused grave financial loss to Microcheck Systems, Inc. stock and to the value of the shares held by John manning. Please state in specific details dollars and cents the current value you place on the stock of Microcheck Systems, Inc.; and the value that you placed on the stock before the alleged usurping activities by Mike Smith. ANSWER: a The discovery request is overly broad, lacks definition, or is not reasonably limited in scope ortime. ‘ Subject to and without waiving the foregoing, John D. Manning would show that the current value of Microcheck Systems, Inc. stock is less than $25,000.00. Before Mike’ Smith's actions it was worth in excess of $1,000,000.00. a ¥ L 13. In your counter claim you claim that mike Smith's usurping financial opportunities caused grave financial loss to Microcheck Systems, Inc. stock. Please quantify in dollars and cents ” the amount of loss you claim has occurred and how this loss occurred due to the usurping activities ue you allege on the part of Mike Smith. ANSW. ER: $1 000,000.00, See answer to No. 11 as to how it occurred, 14. Please state whether or not an agreement, whether oral or written ever exited between John Manning and Mike Smith during the period of time that Mike Smith served as corporate president of Microcheck Systems, Inc., setting out what the duties, responsibilities, and powers of Mike Smith were as corporate president of Microcheck Systems, Inc., if so, please state your understanding of what Smith’s duties, responsibilities, and corporate powers were as corporate president of Microcheck Systems, Inc. ANSWER: a. The discovery request is overly broad, lacks definition, or is not reasonably” 12/86/2085 14:4@ 2e154076a—y SMC HOMES rN PAGE 29 limited in scope or time. Subject to and without waiving the foregoing, no such agreement existed. See number 11 as to his duties and responsibilities. His main responsibility was to look out of the well-being of the company and abide by the decisions of the board of directors. : ' ' 15. Please state the total amount of financial capital which you invested in Microcheck Systems, Inc. since its inception in 1984 to the present time. ISWER: a. The discovery request is overly broad, lacks definition, is not reasonably limited in scope or time, is an invasion of privacy, and is not relevant. Subject to and without waiving the foregoing, I estimate I invested over $1,000,000.00 over the years. “ 16. Please state the total amount of money in dollars and cents which you have been paid by Microcheck Systems, Inc. since its inception in 1984 to the present time that you are answering this intcrrogatory under oath. ANSWER: a. The discovery request is overly broad, lacks definition, is not reasonably limited in scope or time, is an invasion of privacy, and is not relevant. Subject to and without waiving the foregoing, I do not know. 17. Please state in dollars and cents the total amount of moncy you are aware that Microcheck Systems, Inc. has paid to any company you have an ownership interest in, such as JM Management, JMC Homes, Microcheck Solutions and Educated Systems & Solutions, Inc. from the time of Microcheck Systems, Inc. inception until the present time. ANSWER: a The discovery request is overly broad, lacks definition, or is not reasonably limited in scope or time. b. The burden or expense of compliance with the discovery request outweighs its likely benefit, taking into account the needs of the case, the amount in controversy, the parties' resources, the importance of the issues at stake in this litigation, and the importance of the proposed discovery request in resolving the issues. ae ae12/86/2885 14:48 281548763 SMC HOMES oN c. The discovery request is unreasonably frivolous, oppressive, or harassing. a. The discovery request asks for information that is not relevant and is not reasonably calculated to lead to the discovery of admissible evidence. Subject to and without waiving the foregoing, I am not aware of any funds paid to any of the companies mentioned. i 18. Please state the name, address and telephone number of all accountants, investerent brokers, investment counselors, stock brokers, mutual fund brokers, CPA’s and attorneys you have used for any purpose since January 1, 2000. ANSWER: a. The discovery request is overly broad, lacks definition, or is not reasonably limited in scope or tirne. * b. The discovery request is unreasonably frivolous, oppressive, or harassing. c.. The discovery request asks for information that is not relevant and is not reasonably calculated to lead to the discovery of admissible evidence. d. The discovery request is an invasion of privacy. 19. Please state the name, address and telephone number of every person that you have had a conversation with since October 1, 2004, regarding Mike Smith’s departure from Microcheck Systems, Inc. and/or an alleged hostile and illegal takeover of Microcheck Systems, Inc. ANSWER: a The discovery request calls for information that is privileged, and that has been or will be properly asserted under Texas Rule of Procedure 193.3. Subject to said objection: Les Mignerey, Microcheck Systems, Inc., 9777 West Gulf Bank, Houston, Texas 77040; Michacl Harssema, Attorncy, Robert Buchholz, Attorney, Roy Murphy, UI, Ray Besser, accountant, various personnel at Microcheck Systems, Inc., and my wife. PAGE 18 tw cee Le* 42/06/2005 14:40 © 281540767™% JMC HOMES tN PAGE 11 20. Please state the name, address and telephone number of every person you have personally told that Mike Smith “fucked up” your company. ANSWER: a. The discovery request is overly broad, lacks definition, or is not reasonably limited in scope or time. Subject to and without waiving said objection, Roy Murphy, ITl.at the time of the recent court conference in the jury room.. \ t 21, Please state the name, address and telephone number of every person you have personally told that Scott Murphy “fucked up” your company. ANSWER: a. The discovery request is overly broad, lacks definition, or is not reasonably limited in scope or time. Subject to and without waiving said objection, None that I recall. 22. Please state the name, address and telephone number of everyone you have perspitally told that Mike Smith, Scott Murphy, and Chris Zigrossi did something they shouldn't have done in tegards to Microcheck Systems, Inc. ANSWER: a The discovery request calls for information that is privileged, and that has been or will be properly asserted under Texas Rule of Procedure 193.3. b. ‘The discovery request is overly broad, lacks definition, or is not reasonably limited in scope or time. 2 ot Subject to and without waiving the foregoing, Michael Harssema, Robert Buchholz, Les Mignerey. : at ae ee: 12/06/2005 14:48 2815407692. JMC HOMES aN PAGE 12 CERTIFICATE OF SERVICE I certify that on December 5, 2005 a true and correct copy of Defendant's Responses to Interrogatories was served to each person listed below by the method indicated, Robert W. Buchholz 4131 N. Central Expressway #Suite 800 Dallas, Texas 75204 FAX: 214-754-5500 L. Lee Thweatt Goforth, Lewis & Sanford 1111 Bagby, Suite 2200 . Houston, Texas 77002 * 713-650-1669 Tom Stillwell Fulbright & Jaworski, L.L.P. 1301 McKinney, Suite 5100 Houston, Texas 77010-3096 FAX: 713-651-5246 Roy Murphy, Ill 12527 Cypress . North Houston, Suite 110 Cypress, Texas 77429 By FAX: 281-955-9922"12/06/2085 14:49 29154076 Ada 4076 5m JMC HOMES oN NO. 2004-59790 MICROCHECK SYSTEMS, INC. AND. EDUCATED SYSTEMS & SOLUTIONS, INC. Plaintiffs, Vv. ZIGROSSI & MURPHY, LLC, - EDUCATED SOLUTIONS, FROST BANK, TEXAS, CHRIS ZIGROSSI, SCOTT MURPHY, MIKE SMITH, JIM HAYDEN ,ALEX CAMPBELL And JASON JABLECKI Defendants. IN THE DISTRICT COURT 125TH. JUDICIAL DISTRICT CP OD UD UP UD thn COD UD UA LD ED UO LD OF HARRIS COUNTY, TEXAS. RD PARTY DEFENDANT'S RESPONSE TO SECOND SET O) OGATORIES OF THIRD PARTY PLAINTIFF MIKE SMITH To: MIKE SMITH, Third Party Plaintiff, by and through his attorney of record, Roy Murphy, MI. NOW COMES John D. Manning, Third Party Defendant, and responds to this Set of Interrogatories propounded by MIKE SMITH pursuant to Rule 197 of the Texas Rules of Civil Procedure. Respectfully submitted, DManning, Third Party Defendant, Pro Se 40 B/ North Houston Ave., mble, TX 77338 Tel. (280)540-7650 Fax. (281)540-7690 PAGE 13 te te_ ° 12/86/2005 14:49 28154076 pm) JMC HOMES cf PAGE NSWERS TO INTERROGATORIES 1. State your name and date of birth, place of birth, current residential and business addresses, social security nurober and Texas driver’s license number. ANSWER: John D. Manning; August 4, 1942, Houston, Texas, 140 North Houston Ave., Suite B., Humble, Texas; 462-60-2716. Object to providing driver's license number, as such information is irrelevant. . 2. State why you changed the name of Microcheck Systems, Inc. to Microcheck Solutions and Educated Systems and Solutions, Inc.? ANSWER: The name was not “changed”. Microcheck Solutions, Inc. is a separate and distinct corporation. . 3. Please state the name, address, and telephone number of persons you have personally told that Mike Smith embezzled money from Microcheck Systems, Inc. ANSWER: a. The discovery request is overly broad, lacks definition, or is not reasonably limited in scope or time. Subject to and without waiving the foregoing, John D. Manning does not believe he told anyone that “Mike Smith embezzled money from Microcheck Systems, Inc, other than directly to his attorney, Roy Murphy.” 4. In your various pleadings you continuously use the word usurp or usurping. Please define for us your understanding of what the word usurp means, or more specifically what you mean when you allege that various parties have usurped corporate opportunities. ANSWER: a. The discovery request is overly broad, lacks definition, or is not reasonably limited in scope or time, and does not specify which part of the question to answer. 14 he te woe ae. 12/86/2005, 14:48 2815497690 JMC HOMES A ~ PAGE 15 Subject to and without waiving the foregoing, usurp means: To seize, and hold in possession, by force, or without right, as to usurp a throne; to usurp the prerogatives of the office of a patron is to oust or dispossess him; to commit forcible seizure of place, power, functions, or the like, without right; to commit unjust encroachments; In the context of this lawsuit, it js meant that Smith committed fraud and fraudulent nondisclosure of the truth of his activities and the activities of those under him; he fraudulently misrepresented his status with Microcheck, he committed fraud, he breached a fiduciary duty; he failed to protect the value of the corporate stock; he schemed up plans td cause a devaluation in corporate stock where he could take over the company; he intentionally took corporate assets that the corporation needed in order to operate; he intentionally committed reckless behavior and handling of corporate accounts and bank account, and had full knowledge of the consequences of his actions; he intentionally committed tortuous conduct; he was intentionally not diligent or prudent in managing company business; he intentionally failed to discharge his duties as president; he intentionally failed to act in good faith; he intentionally failed to exercise ordinary care; he intentionally breached his duty of loyalty. 5. In your various pleadings you use the term usurping financial opportunities. Please define for us your understanding of the definition of usurping financial opportunities. .. ANSWER: 2. The discovery request is overly broad, lacks definition, or is not reasonably limited in scope or time, and does not specify which part of the question to answer. Subject to and without waiving the foregoing, usurp means: that Smith committed fraud and fraudulent nondisclosure of the truth of his activities and the activities of those under him; he fraudulently misrepresented his status with Microcheck, he committed fraud, he breached a fiduciary duty; he failed to protect the value of the corporate stock; he schemed up plans to cause a devaluation in corporate stock where he could take over the company; he took corporate assets that the corporation needed in order to operate; he committed reckless behavior and handling of corporate accounts and bank account, and had full knowledge of the consequences of his actions; he committed tortuous conduct; he was not diligent or prudent in managing company business; he failed to discharge his duties as president; he failed to act in good faith; he failed to exercise ordinary care; he breached his duty of loyalty. . 6. In a recent cross claim that you filed, you have sued Chris Zigrossi, Scott Murphy, Jim Hayden, Alex Campbell, and Jason Jablecki. You have further alleged that all of these people were employees of MicrocheckSystems, Inc, and owed a fiduciary relationship to Microcheck wee lee* 12/86/2885 14:48 28154076 Fou JMC HOMES ~~ PAGE 16 Systems, Inc. and its shareholder, John Manning. You further allege that all of these people usurped corporate opportunities and usurped financial opportunities for their own personal gain when these opportunities belonged to Microcheck Systems, Inc. Please state in detail: a. The manner in which you contend that these five individuals usurped corporate opportunities; and b. Please quantify in dollars and cents the amount of loss you claim has occurred due to the usurping of financial opportunities by each of these individuals. ses : f ANSWER: a The discovery request is overly broad, lacks definition, or is ndt reasonably limited in scope or time, and does not specify which part of the question to answer. Subject to and without waiving the foregoing, the parties committed fraud and fraudulent nondisclosure of the truth of his activities and the activities of fellow workers; they fraudulently misrepresented their status with Microcheck, the y committed fraud, breached a fiduciary duty; failed to protect the valuc of the corporate stock; schemed up plans to cause a devaluation in corporate stock where they could take over the company; they took corporate assets that the corporation needed in order to operate; they committed reckless behavior and handling of corporate accounts and bank account, and bad full knowledge of the consequences of their actions; they committed tortuous conduct; they were not diligent or prudent in handling company business; they failed to discharge their duties as employees; they failed to act in good faith; they failed to exercise ordinary care; they breached their duty of loyalty. 7 b. $1,000,000.00, jointly and severally. 7. Ina recent cross claira you filed, you have alleged that five individuals committed fraud in their dealings and paid themselves unauthorized bonuses, diverted money to a retirement account without director authorization, and took numerous computers, software and source codes of products, products that Microcheck had sold, company customer lists and various documentation and other company asscts valued at hundred of thousands of dollars to the new company and leaving Microcheck Systems, Inc. devoid of any worthwhile assets and inventory or the ability to function as an ongoing concern. Please break down in detail the percentage of fault, or fraud, or conversion of funds that you assess to cach of these individual five cross defendants, Please quantify this in exact amounts that you claim were converted and each amount you would attribute to cach of the five cross defendants. ANSWER: The discovery request is overly broad, lacks definition, or is not reasonably limited in scope or time. Objection is made to any interrogatories that inquire about “any,” “every,” “each,” “each and every,” or “all” occurrences, persons, documents, statements, and knowledge, to the extent that such inquiries reach, or would require Manning to invade or reveal matters exempt from discovery under lawyer-client communications and investigative Re Ae+ 12/06/2 : / 08/2005, 14: 40__renseo7egg SMC HOMES privileges (“communication and things that are exempt”), and because generalization would unfairly limit Manning's presentation at the time of trial, K-Mart v. Sanderson, 937 8.W.2d 429 (Tex.1966); (applying Texaco, Inc, v. Sanderson, 898 S.W.2d 813 (Tex. 1995); Dillard Dept. Stores, Inc, v. Hall, 909 8.W.2d 491, 492 (T ¢x.1995) to interrogatories and other discovery); and Loftin v. Martin, 776 S.W.2d 145, 148 (Tex.1989). Further, it invades the province of the jury. Subject to said objections: Mike Smith, Chris Zigrossi, and Scott Murphy were involved in the conversion of $110,000.00 cash, jointly and severally, as well as the other corporate property mentioned, ‘ 8. Inarecent cross claim you filed, you have alleged that the cross defendants aided and encouraged by Mike Smith and others. interfered with the business relationship and outstanding contacts of Microcheck Systems, Inc. by causing confusion as to the ownership and name, stole customer lists, contacted customers of Microcheck Systems, Inc. etc. Please state in detail what you contend as to what each of these cross defendants did and further what you contend Mike Smith did to: a. Interfere with the business relationship and outstanding contacts of Microcheck Systems, Inc,.; b. By causing confusion as to ownership and name; : c. Who you alleged specifically stole customer lists, and who you allege specifically conjatted customers of Microcheck Systems, Inc. or interfered with Micocheck Systems, Inc.’s access to its business records, . ANSWER: The discovery request is overly broad, lacks definition, or is not reasonably limited in scope or time. Objection is made to any interrogatories that inquire about “any,” “every,” “each,” “each and every,” or “all” occurrences, persons, documents, statements, and knowledge, to the extent that such inquiries reach, or would require Manning to invade or reveal matters exempt from discovery under lawyer-client communications and investigative privileges (“communication and things that are cxempt”), and because generalization would unfairly limit Manning’s presentation at the time of tial, K-Mart v, Sanderson, 937 S.W.2d 429 (Tex.1966); (applying Texaco, Inc. v. Sanderson, 898 $.W.2d 813 (Tex. 1995); Dillard Dept. Stores, Inc. v. Hall, 909 8,W.2d 491, 492 (Tex.1995) to interrogatories and other discovery); and Loftin v. Martin, 776 S.W.2d 145, 148 (Tex.1989). Subject to said objections and without waving said objections, I would show that Smith, Zigrossi and Murphy : a. Cancelled pending business sales, contacted customers on behalf of other companies. b. Passed off Microcheck advertising and products as that of other companies. ¢. Stole customer lists, contacted Microcheck customers, and destroyed Microcheck records. d. Took company money and spent it for their own uses and purposes. ¢. Took company assets and converted them to their own personal use. 9. Please state whether or not a non-competition agreement has ever exitsted between Microcheck Systems, Inc. and any of the following persons: aX PAGE 17 he we Lem> 12/06/2885 14:48 26154076 fy JMC HOMES PAGE 18 2 . Mike Smith . Chris Zigrossi Pra . Scott Murphy : . Jim Hayden . Alex Campbell . Jason Jablecki Aupwunn ANSWER: None. 10. Inyour recent cross claims that you filed, you alleged you have suffered a loss ofone million dollars ($1,000,000.00), for which amount you sue. Please quantify in detail bow you arrived at your alleged one million dollar loss? ANSWER: . a. The discovery request is overly broad, lacks definition, or is not reasSnably limited in scope or time, Subject to and without waiving the foregoing, when the monies are added up that were taken from the company without directors’ consent, and the business that was lost as a result of lost contracts, and the property that was lost, it reduces the company value by $1,000,000.00. eee we 11. Please state the total net profit according to the corporate records of Microcheck + Systems, Inc. of Microchcck for the following years: 1996 through 2004. "y ae ANSWER: a The discovery request is overly broad, lacks definition, or is not reasonably limited in scope or time. Subject to and without waiving the foregoing, John D. Manning does not have these records, You would need to inquire of the corporation as to these figures. 12. Please state the name, address, and telephone number of any person who assists you in answering these interrogatorics.. oy ANSWER: The discovery request is overly broad, lacks definition, or is not reasonably limited in scope or time. Objection is made to any interrogatories that inquire about “any,” “every,” “each,” “each and every,” or “all” occurrences, persons, documents, statements, and“12/06/2085 14:48 28154076 Sy JMC HOMES ~~ PAGE 19 knowledge, to the extent that such inquiries reach, or would require Manning to invade or reveal matters exempt from discovery under lawyer-client communications and investigative at privileges (“communication and things that are exempt”), and because generalization would . unfairly limit Manning's presentation at the time of trial, K-Mart v. Sanderson, 937 $.W.2d 429 (Tex.1966); (applying Texaco, Inc. v. Sanderson, 898 S.W.2d 813 (Tex. 1995); Dillard Dept. Stores, Inc. v, Hall, 909 $.W.2d 491, 492 (Tex.1995) to interrogatories and other discovery); and Loftin v. Martin, 776 S.W.2d 145, 148 (Tex.1989). Further, it invades, Manning’s privacy. Subject to said objections: Les Mignerey, Microcheck Systems, Inc., 9777 West Gulf Bank, Houston, Texas 77040. VERIFICATION STATE OF TEXAS § § COUNTY OF HARRIS § BEFORE ME, the undersigned authority, personally appe: gitttand D. Manging, yy Styted, o58 peter upon oath, that the statements made in the ees vis Gare true and correct, Oy Yt} bo (9 D. Manning “ ae ae wee SUBSCRIBED AND SWORN TO BEFORE ME on December 5, 2005, by John D. Manning. . eet eee | Co UNOS OED ‘My Notary Comission Expires Sopternber 06, 2009 Notary Public, State of Texas~ ~ CER’ CATE OF SERVICE I certify that on December 5, 2005 a true and correct copy of Defendant's Responses to Interrogatories was served to each person listed bel, re method indicated. the ; Manning, Plaintiff, Pro Se Robert W. Buchholz 4)31 N. Central Expressway #Suite 800 Dallas, Texas 75204 FAX: 214-754-5500 L, Lee Thweatt Goforth, Lewis & Sanford 1111 Bagby, Suite 2200 Houston,, Texas 77002 : .- 713-650-1669 . Tom Stillwell : : Fulbright & Jaworski, L.L.P. . ! 1301 McKinney, Suite 5100 . Houston, Texas 77010-3096 FAX: 713-651-5246 Roy Murphy, UI 12527 Cypress . North Houston, Suite 110 Cypress, Texas 77429 By FAX: 281-955-9922 wee Oe a eee