rry McClendon vs. Bobby Springfield
CAUSE NO.
DC-13-00488
LARRY G. McCLENDON, § IN THE DISTRICT COURT
Plaintiff, §
§
v. § 162nd JUDICIAL
DISTRICT
§
BOBBY SPRINGFIELD, §
Defendant. § DALLAS COUNTY, TEXAS
MOTION FOR
RECONSIDERATION
TO THE HONORABLE JUDGE OF SAID COURT:
COMES
NOW Larry McClendon (“McClendon”), Plaintiff in the above-captioned case,
and files this his Motion for Reconsideration (“Motion”), and
would respectfully show unto the Court as follows:
PROCEDURAL
BACKGROUND
1.
The above-captioned case is a bill of review,
filed by McClendon, seeking a new trial with respect to Case No. DC-08-00268
(the “Original Case”).
2.
On August 26 and 27, 2015, this Court tried the
above-captioned case as a bench trial before the Honorable Judge Phyllis Lister
Brown. During the trial, Judge Brown was
repeatedly observed to be asleep during the presentation of the evidence. This affected not just the Judge's ability to
observe evidence, but also her ability to observe the credibility of
witnesses. For example, at trial,
McClendon's counsel presented testimony via video deposition. McClendon had specifically taken the video
depositions in the first place in order to show the dishonesty of both the
deponent and the deponent's counsel through both their words and demeanor. Because Judge Brown had slept through the
presentation of these witnesses, however, McClendon was denied the opportunity
to properly present this to the Court during the trial of his case. Further,
during the trial the Honorable Judge was observed to be confused on
dates and other events that had occurred in the case, including when the Judge
stated during the opening of the trial that she had made a disclosure about a
potential conflict of interest approximately a year prior, but none of the parties
recalled this disclosure by the Judge.
3.
On October 19, 2015, this Court signed a
judgment in favor of Defendant Bobby Springfield (“Springfield”) and against
Plaintiff Larry G. McClendon.
4.
In or about the week of May 23, 2016, the Dallas
City Council announced that the Honorable Judge Phyllis Lister Brown, District
Court judge for this Court, had passed away.
Further, newspapers reported that she had been ill and undergoing
chemotherapy treatments for quite some time.
5.
On August 29, 2016, the Court entered its
Findings of Fact and Conclusions of Law (“FOFCOL”).
6.
However, the FOFCOL contained numerous
erroroneous statements not supported by the record in this case. Accordingly, pursuant to Tex. R. Civ. P.
329b, McClendon now files this Motion.
STATEMENTS
IN FINDINGS OF FACT SECTION
7.
In paragraph 1 of its FOFCOL, the Court found
that “McClendon failed to exercise due diligence to prosecute all adequate
legal remedies against the former judgment.”
However, this is erroneous. As
shown at trial in this case, during the Original Case Springfield and his
counsel Brian Sanford (“Sanford”) performed numerous wrongful acts, including
witness tampering, perjury, suborning perjury, violating the Rule, and
improperly offering a benefit to witnesses –
both to Mary Jane Tropoloc (“Tropoloc”) and James Bennet (“Bennet”)[1] –
in exchange for their testimony in trial during the Original Case.[2] Further, as the record established, these bad
acts were unknown to McClendon, and Sanford and Springfield compounded these
wrongful acts by concealing them. It is
undisputed that McClendon did not have any knowledge of the wrongful conduct by
Springfield, his attorney Sanford, or any of the trial witnesses until the time
of Tropoloc's deposition in a bankruptcy proceeding on October 12, 2012 – well
after the appellate deadline had run for the Original Case. Thus, even if McClendon had filed an appeal
in the Original Case, at that time he could not have included as a basis of
appeal the various bad acts now urged in the instant bill of review action,
because Springfield and his counsel concealed these actions and McClendon did
not have any means to discover such grounds until after the time to appeal had
run. Accordingly, McClendon cannot be
found negligent for failing to file an appeal of that judgment based on the
currently complained-of wrongful conduct because he had no knowledge it, nor
could he because it had been actively concealed by Springfield and
Sanford.
8.
In paragraph 2 of its FOFCOL, the Court found
that “McClendon failed to present his alleged claims in the bill of review
because of his own fault, accident, or mistake.” This is erroneous for the same reason as the
prior finding. Springfield and Sanford
hid their bad acts, and did not disclose their behavior until 2012 during
depositions in another proceeding in bankruptcy court.[3]
9.
In paragraph 3 of its FOFCOL, the Court found
that “McClendon failed to present sufficient evidence that Springfield or his
counsel, Brian P. Sanford, did anything improper at the underlying trial.” This is also erroneous. As covered above, McClendon's counsel Royce
West presented evidence that Springfield, Sanford, and other witnesses
committed numerous bad acts, including violating the Rule, committing perjury,
suborning perjury, and improperly giving compensation in exchange for
testimony.
10.
In paragraph 4 of its FOFCOL, the Court found
that “To the extent Springfield or his counsel may have violated Tex R. Civ. P.
267 at the underlying trial, McClendon failed to show that any violation was
not harmless or that it affected the outcome of the trial.” This, also, is erroneous. Because of their
bad acts, the Court in the Original Case would have excluded these witnesses
had their actions been known, because a when a witness violates the Rule, a trial
Court should exclude that witness from testifying.[4] And without the coached witnesses that
committed perjury, violated the Rule, and were engaged in an unethical
“compensation for testimony” deal, Springfield would have had no evidence in
the Original Case to meet his burden of proof for his claims of defamation
against McClendon on the statements that he alleged were defamatory.[5] To wit: In the Original Case, Springfield
alleged that (1) McClendon had made a number of statements about Springfield,
and (2) that such statements were defamatory.
As part of Springfield's burden to prove his defamation claims in the
Original Case, Springfield had to prove that each of the statements he alleged
McClendon made were false.[6] In order to prove the falsity of a number of
the alleged defamatory statements – specifically, those statements list in
Question 13(c), (h), and (i) in the jury charge in the Original Case –
Springfield offered at trial of the Original Case only the testimony of Bennet
and Tropoloc, or even just Tropoloc alone.[7] And while the jury in the Original Case found
that the alleged defamatory statements listed in Question 13(c), (h), and (i)
in the jury charge were false, if the testimony of Bennet and Tropoloc had been
excluded (which, because of the wrongful acts of Springfield, Sanford,
Tropoloc, and Bennet, it should have been), then there would have been no
evidence to support any findings that such alleged defamatory statements were
false.[8]
11.
In paragraph 5 of its FOFCOL, the Court found
that “To the extent Springfield or his counsel may have violated Tex R. Civ. P.
267 at the underlying trial, the violation was not intentional or
fraudulent.” This is erroneous. All evidence points to the fact that all
actions taken by Springfield, Tropoloc, Bennet, Khamir, and Sanford in
violation of the Rule in the Original Case were intentional and with knowledge
of what they were doing. Sanford and
Springfield knowingly discussed testimony with witnesses and coached their
witnesses on testimony at Sanford's offices and in the hallways of the court
during Trial. When confronted with this
at trial, Sanford testified that he didn't believe this was a violation of the
Rule.[9]
12.
In paragraph 6 of its FOFCOL, the Court found
that “To the extent Springfield or his counsel may have violated Tex R. Civ. P.
267 at the underlying trial, the violation was harmless and did not affect the
outcome of the trial.” This finding is
essentially a repeat of the Court's finding in paragraph 4 of its FOFCOL, and
for the same reasons described above, this finding is also erroneous.
13.
In paragraph 7 of its FOFCOL, the Court found
that “Neither Springfield nor his counsel, Sanford, offered compensation or
free services to a witness in exchange for testifying.” This is erroneous. As covered above, Sanford admitted during
trial that he offered to represent witnesses from the Original Case for free in
exchange for their testimony in the Original Case.[10] Moreover, Sanford even admits to making these
offers in his proposed findings of fact (see the next finding of fact below)
that he filed with this Court. Legal
representation is a valuable service in the market worth hundreds of dollars
per hour, and an offer to give such service to someone free of charge in
exchange for their testimony is most certainly an offer to give compensation to
a witness. This, combined with the fact
that the various witnesses that Sanford offered free representation to changed
their prior sworn testimony during the Original Case shows that
Sanford's offer for free representation to the witnesses was meant to be in
exchange for the content of the witnesses' testimony in violation of Texas
Disciplinary Rules of Professional Conduct 3.04.[11]
14.
In paragraph 8 of its FOFCOL, the Court found
that “The evidence shows that Sanford offered to represent a witness if the
witness was sued by McClendon in retaliation for testifying in the underlying
case. This is not offering compensation in return for testimony.” For all the same reasons as the previous
finding, this finding is erroneous as well.
15.
In paragraph 9 of its FOFCOL, the Court found
that “McClendon failed to prove that Springfield or Sanford induced any witness
to change his or her testimony at the underlying trial.” This is erroneous because the evidence is the
exact opposite. For example, as covered
above, after Sanford made his unethical offer, Tropoloc did a 180 degree
reversal on multiple statements from her prior sworn testimony.
16.
In paragraph 10 of its FOFCOL, the Court found
that “Sanford disclosed to McClendon before the underlying trial that he would
represent a witness if McClendon retaliated against the witness because of the
person's testimony.” This is erroneous
because as covered above it is undisputed that McClendon did not have any
knowledge of wrongful conduct by Sanford, Springfield, or any of the trial
witnesses until the time of Tropoloc's deposition on October 12, 2012.
17.
In paragraph 11 of its FOFCOL, the Court found
that “McClendon failed to prove that he was prevented from presenting his case
in full in all material respects at underlying trial.” However, the evidence is just the opposite –
because McClendon didn't know about the above-described bad acts prior to the
running of the appeal deadline, McClendon was prevented from properly raising
these issues both to the District Court and the Court of Appeals in the
Original Case.
18.
In paragraph 12 of its FOFCOL, the Court found
that “McClendon failed to present any evidence of changed testimony at the
underlying trial based upon any alleged misconduct by Springfield or his
counsel.” This is just flat-out
erroneous. As covered above, Tropoloc
made a 180 degree reversal on multiple sworn statements, and did so after
Sanford's improper offer.
19.
In paragraph 13 of its FOFCOL, the Court found
“McClendon failed to prove that Springfield or his counsel committed intrinsic
or extrinsic fraud.” The basis of the
instant bill of review action is not fraud, it is the bad acts and conduct of
Springfield, his counsel, and the witnesses in the Original Case.
STATEMENTS
IN THE CONCLUSIONS OF LAW SECTION
20.
In paragraph 1 of its conclusions of law, the
Court found “At the time that McClendon stated that he had grounds for appeal,
he failed and neglected to appeal.” This
is erroneous, because as covered above McClendon and his counsel were prevented
from appealing the complained-of bad acts because McClendon had no knowledge of
such acts because Springfield, Sanford, and the witnesses concealed their bad
acts.
21.
In paragraph 2 of its conclusions of law, the
Court found “A bill of review will be denied when the failure to make the
claims is mixed with fault or negligence of the petitioner. King Ranch, Inc. v.
Chapman, 118 S.W.3d 742, 751-52 (Tex. 2003).”
McClendon couldn't have been negligent in the Original Case because he
didn't know about the complained-of bad acts because they were concealed.
22.
In paragraph 3 of its conclusions of law, the
Court found “McClendon's claims relate to intrinsic fraud and not extrinsic
fraud.” As covered above, the basis of
the instant bill of review action is not fraud, it is the bad acts and conduct
of Springfield, his counsel, and the witnesses in the Original Case.
23.
In paragraph 4 of its conclusions of law, the
Court found “Only extrinsic fraud will support a bill of review.” McClendon's response to this finding is the
same as the prior finding.
24.
In paragraph 5 of its conclusions of law, the
Court found “Neither Springfield nor his counsel committed either intrinsic or
extrinsic fraud.” McClendon's response
to this finding is the same as the prior finding.
25.
In paragraph 6 of its conclusions of law, the
Court found “The bill of review should be denied and judgment be rendered in
favor of Springfield.” For all the
reasons set out in this pleading as well as in McClendon's previously-filed
proposed findings of fact and conclusions of law, the bill of review should be
granted.
WHEREFORE,
PREMISES CONSIDERED, McClendon respectfully requests that the Court grant
this Motion, vacate its prior findings of fact and conclusions of law, and
enter McClendon's submitted proposed findings of fact and conclusions of law
instead, and for such other and further relief, both at law and in equity, to
which McClendon may show himself to be justly entitled.
Respectfully
Submitted,
JOYCE
W. LINDAUER ATTORNEY, PLLC
/s/ Joyce W. Lindauer
Joyce
W. Lindauer
State
Bar No 21555700
12720
Hillcrest Road, Suite 625
Dallas,
Texas 75230
Tel:
(972) 503-4033
Fax:
(972) 503-4034
ATTORNEYS
FOR PLAINTIFF
\
CERTIFICATE
OF SERVICE
I hereby
certify that on September 22, 2016 that a true and correct copy of the
foregoing was served on opposing counsel through the Court's e-file system.
/s/ Joyce W. Lindauer
Joyce
W. Lindauer
[1] Springfield's attorney Sanford (unbeknownst
to McClendon at the time of trial) offered to Tropoloc and Bennet in exchange
for their testimony in the Original Case that he would act as their attorney
for free both during the Original Case and in any future legal matters related
to the McClendon or his business.
Transcript from August 27, 2015, pg. 66 – 67.
[2] See, for example, Transcript from August 26,
2015, pg. 94 – 104, 132 – 133, Transcript from August 27, 2015, pg. 49 – 50, 54
– 55, 66 – 67, 109 – 110; Texas Disciplinary Rules of Professional Conduct
3.04(“A lawyer shall not: … (b) … pay, offer to pay, or acquiesce in the offer
or payment of compensation to a witness or other entity contingent upon the
content of the testimony of the witness or the outcome of the case.”).
[3] See, for example, Transcript from August 26,
2015, Pg. 43.
[4] Bell v. State, 938 S.W.2d 35, 50 (Tex.
Crim. App. 1996).
[5] Transcript from August 27, 2015, 10 – 11 and
15 – 18.
[6] French v. French, 385 S.W.3d 61, 72
(Tex. App.–Waco 2012, pet. denied)(“The elements of a defamation claim of a
private plaintiff against a non-media defendant are: … 3. the statement was
false”).
[7] See Transcript from August 27, 2015, pg. 13
– 16.
[8] Bell v. State, 938 S.W.2d 35, 50 (Tex.
Crim. App. 1996).
[9] See Transcript from August 26, 2015, pg. 137
– 39.
[10] See Transcript from August 27, 2015, pg. 25.
[11] See, for example, Tropoloc's testimony from
the Original Case. On the stand at trial
in the Original Case she claimed that she had personally witnessed McClendon
publish or cause to be published alleged defamatory statements. Transcript from March 15, 2011, starting at
pg. 144. However, in her prior
deposition in the same case she had explicitly said that she had not seen those
actions. Transcript from March 15, 2011,
pg. 156 – 161. Further, in the previous
deposition she had stated that Springfield had been stealing from the company
(which were the very same accusations made by McClendon in his claims against
Springfield in the Original Case).
Transcript from March 15, 2011, pg. 156 – 161. However, during her testimony at trial,
Tropoloc recanted her sworn accusations of theft against Springfield and
changed her story. Transcript from March
15, 2011, pg. 156 – 161; See also Texas
Disciplinary Rules of Professional Conduct 3.04(“A lawyer shall not: … (b) …
pay, offer to pay, or acquiesce in the offer or payment of compensation to a witness
or other entity contingent upon the content of the testimony of the witness or
the outcome of the case.”)
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