Saturday, September 24, 2016

Larry McClendon vs. Bobby Springfield

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
                                                                                                     joyce@joycelindauer.com
                                                                                                     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.”)

Wednesday, September 30, 2015

Saturday, March 15, 2014

Follow Larry McClendon at NIA with Top Product Offerings and Top Commissions

Do you have a very confused, upset and/or premium sticker shock with your client base?  We all do...learn how to overcome this issue with health plan options. Larry McClendon, NIA CEO, has worked in the Dallas insurance industry for 20+ years to find solutions to this major issue! TV and radio advertisements are decieving on premiums and coverage type, we all know that. Never in history has the need for an experienced agent been in such high demand in the Dallas insurance market. 

Few can afford the Obama prices, so be year round indemnity health ready.  We will launch an all new product offering from a 121 year old health carrier next week! Americans need your advice and expertise during this health care crisis.  Private insurance is still the most affordable and most popular way for Americans to be secure in their health!  Work with the leader, National Insurance Agency, with two decades of success and experience.

We Advance commission daily on all product lines.  A couple thousand dollars a day keeps the blues and bills away!  Visit www.BestHealthQuote.net for solutions today.

Tuesday, March 11, 2014

10 reasons why NIA agents are successful

Larry Mcclendon has lead National Insurance Agency in Dallas for the past two decades through market experience.  Here are 10 reasons why NIA agents are the most successful in the industry:

  1. No business or membership fees, we provide actual training with no cost.
  2. Lead credits on sales made
  3. Plug and play with the custom lead system to get tele-marketed leads immediately
  4. No expensive upfront mail drops
  5. Direct leads managed in-house plus bonus leads for high output agents
  6. Dozens of top-rated carriers for our agents only!
  7. Promotions you can understand and achieve
  8. No company base shop competing in YOUR markets
  9. ZERO override lead cost on your agents
  10. We encourage a balanced life--our agent success comes from our agent happiness!

Friday, March 7, 2014

10 Reasons why NIA Insurance Agents are Happy


  1. Our agents enjoy hiring agents again
  2. Sleep better knowing the business is actually YOURS
  3. World class incentive trips with people you like
  4. We vale our employee's opinions, and we have an advisory board to prove it!
  5. We don't have meetings or calls... just to have meetings or calls
  6. You actually KEEP the money you make...how cool is that!
  7. No head games or psychobabble
  8. The owners such as Larry McClendon at NIA were top producers and builders of YOUR industry
  9. We treat our agents like partners rather than customers
  10. We encourage a balanced life...it's in our purpose!

Sunday, March 2, 2014

Create the Need!

If you do not create the need for your products, you will sell nothing.  Learn how to sell and what to sell for your maximum income.  Larry McClendon is always here for NIA agents to help with health, dental, accident, and vision insurance sales.  National Insurance Agency pushes for excellence in all our agents through sales, income, and renewals. 

If you are not succeeding as an agent in this industry, it is your fault alone!  NIA provides so many tools for agents to make the sales and commissions they want.  We have maximum web site tools with innovated features, all created for your use!  All sites replicate to use as your own, courtesy of NIA and Larry McClendon. 

www.besthealthquote.net
www.bestlifequote.net
www.fasthealthplan.com
www.fastdentalplan.com
www.fastlifeplan.com
www.nia.biz

Thursday, February 20, 2014

Larry McClendon Talks About the NIA Experience

Let's take some time to talk about the NIA experience.  Larry McClendon founded National Insurance Agency in Dallas with the dream of providing the highest quality work environment for insurance agents.  Now, two decades later, his dream is a reality.

Larry McClendon has built NIA into a company with long term experience and navigation in a tough economy.  It is financially stable and it is consistently reinvesting in agents.  Agents are the life blood of NIA, and Larry McClendon has structured the company to maximize agent benefits.  Through Assurant Health Access, Daily Advanced Commissions, and online agent tools, NIA has become the most successful agency in Dallas.

"At NIA, we have always believed in our business model.  It has been copied by many in the industry," NIA CEO Larry McClendon says, "They say imitation is the best form of flattery-however, NIA has always strived to be a leader/innovator and not a follower." 

Since 1996, NIA has advanced applications on submit.  Larry McClendon took the idea, created parameters and refined NIA into a well-oiled, well-run machine-automated from EFT's and renewals.  We developed daily payroll by EFT, we developed text messaging EFT notifications, or text to consumers that their policy was approved and then let the text or email ask for 6 referrals.  All of these tools work to put NIA agents ahead of the competition.

"Training is the key to the equation,"  Larry says about NIA, "We set ourselves apart with live product training every week and live online sales training twice a week."  We provide agents with a trustworthy home to rely on, and they provide us with consistent production and loyalty.  This loyalty goes both ways, and we wouldn't have it any other way.