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CAUSE NO. 2014-35398
RONALD BLOOMINGKEMPER, § IN THE DISTRICT COURT OF
Plaintiff,
HARRIS COUNTY, TEXAS
KIRK W. EVANS,
Defendant. § JUDICIAL DISTRICT
PLAINTIFF RONALD BLOOMINGKEMPER’S REPLYTO DEFENDANT KIRK E
EVANS RESPONSE TO PLAINTIFF'S MOTION FOR
INTERLOCUTORY SUMMARY JUDGMENT
TO THE HONORABLE JUDGE OF SAID COURT:
COMES NOW, Plaintiff, RONALD BLOOMINGKEMPER Plaintiff
Bloomingkemper”) who respectfully files this, his Reply to Defendant Kirk E. Evans
(“Defendant Evans”) Response to Plaintiff's Motion for Interlocutory Summary Judgment
(“Response”) and as grounds therefore will respectfully show unto the Court the following:
Ia
ARGUMENTS & AUTHORITIES
It is mandatory to grant a motion for new trial under TRAP 34.6(f)
1 In this case, Plaintiff Bloomingkemper does not have to prove a “case within a
case” as he would have received a new tial under TRAP 34.6(f). The plaintiff
must show that
but for the attomey's negligence the client would have prevailed on appeal. Millhouse, 775
SWa2d 625 , citing Jackson v. Urban, Coolidge, Pennington & Scott, 516 S.W.2d 948, 949
(Tex.Civ.App.—Houston [1st Dist.] 1974, writ ref'd nre.); 2 R. Mallen & J. Smith, Legal
Malpractice § 24.39, at 53637 (3d ed.1989). However, in this situation, Plaintiff
Bloomingkemper had grounds to appeal his Judgment under TRAP 34.6(f). On August 27,
2010, Defendant Evans filed motions for new trial for relief under TRAP 34.6(f). The Trial
On the other hand, if the appeal would have suoceeded in reversing the trial court's judgment and obiaining a more favorable result, then the
plaintiff sustained damage because of the attomey's igence. Millhouse, at 627 citing (footnotes omitted); Breslin & McMonigle, Expert
‘Testimony in Legal Malpractice Actions, 6 Litigation 30, 31 (1979
See P’s Ex. “H”
PLAINTIFF RONALD BLOOMINGKEMPER’S REPLY TO DEFENDANT KIRK E. EVANS RESPONSE TO PLAINTIFF'S
MOTION FOR INTERLOCUTORY SUMMARY JUDGMENT - Page 1 of4
Court never ruled on his Motion for New Trial. Consequently, it was overtumed as a matter of
law.
Plaintiff Bloomingkemper complied with all of the requirements under TRAP
34.6(f). On May 10, 2011, the Judge Engelhart entered Finding of Facts and Conclusions of
Law Pursuant to Court of Appeals’ March 24, 2011 Continuing Abatement Order (“Judge
Engelhart’s Order”) The Trial Court found Agent Walther’s missing testimony in the
underlying case was “necessary to the resolution of the appeal”. The Trial Court also found
“that by deposition, the missing testimony of Agent Vanessa Walther could be replaced.”
According Judge Engelhart’s Order, Plaintiff Bloomingkemper complied with the
requirements under TRAP 34.6(f). Defendant Evans only needed to seek the deposition of Agent
Walther. Altematively, if Agent Walther was not available for deposition, then, Defendant
Evans only had to demonstrate that fact to the Trial Court. Under either scenario, Plaintiff
Bloomingkemper would have received a new trial. If Defendant Evans had complied with the
Trial Court’s Order, Plaintiff Bloomingkemper would have prevailed on appeal. Yet, Defendant
falsely misrepresented that he was obtaining Agent Walther's testimony and failed to obey
multiple court orders. Altematively, if Evans had insisted that a full and complete record be
made
of the trial for purposes
of appeal, it is clear
that a full and complete
record did not exist.
That fact, alone, would have warranted
a new tial.
Plaintiff Bloomingkemper’s assistance to the FBI negates “control person”
Inastrikingly similar case, a Texas Appellate Court noted that due to perpetrators
selling products without permission and outside the market, the broker dealer was not liable as a
control perso _— As in Barnes case, the McCain perpetrators sold outside of USA and Plaintiff
Bloomingkemper’s knowledge and permission.More importantly, Plaintiff Bloomingkemper’ s
TEX. R. APP. P. 34.6(£).
See P’s Ex. “3”, AfE R. Bloomingkemper; P’s Ex. “1”, Aff. G. White; Ex. “E”
Findings of Facts and Conclusions of Law Pursuant to Court of Appeals’ March 24, 2011 Continuing Abatement Order; in Cause No. 1997
45765; John W. McCain et al., v. RandallL. Garrett; etal.; inthe 151 District Court of Haris County, Texas.
Id
If the registered representative was selling products outside the markets to which the registered representative had access by reason of his
eationship with the broker dealer, the representative was acting outside the broker dealer's control and the broker dealer was not subject to
control person liability. Bamesv. SWS Financial Services, Inc., 97, S.W.3d 759, 764 (Tex.App. Dallas 2003, no )
PLAINTIFF RONALD BLOOMINGKEMPER’S REPLY TO DEFENDANT KIRK E. EVANS RESPONSE TO PLAINTIFF'S
MOTION FOR INTERLOCUTORY SUMMARY JUDGMENT Page of
notification
and subsequent assistance
to the FBI negates any aspect
of “control” over the Ponzi
perpetrators.
It is undisputed that, upon leaming of the Ponzi scheme, Plaintiff
Bloomingkemper notified the authorities. Notifying the authorities is contrary to assisting the
Ponzi perpetrators. Plaintiff Bloomingkemper attempted to prevent the Ponzi scheme
to the best
of his abilities, by notifying the authorities. After notifying the authorities, any position of
“control” without admitting any “control,” passed to the authorities. Nevertheless, Plaintiff
Bloomingkemper traveled to Nevada, paying his own travel expenses, to assist the FBI by
wearing a wire and recording Sims.'°By recording Sims, Plaintiff Bloomingkemper helped the
FBI locate the requisite
assets to seize which aided the civil forfeiture
case in retuming money to
the McCain Plaintiffs.
tatus of an individual, even a CEO, is not definitive of a control person. u Agent
Walther testified
that the Ponzi scheme did not operate within any of the companies
that Plaintiff
Bloomingkemper worked and that Sims and Garrett were “selling away” from the companies
affiliated with Plaintiff Bloomingkemper'*Moreover Plaintiff Blo omingkemper lacked any
“control” over the main perpetrator of the scheme. Sims did not work with Plaintiff
Bloomingkemper nor was he affiliated with any of Plaintiff Bloomingkemper's entities.'? USA
fired Garrett on April 26, 1996, prior to any sale of the Ponzi items to the McCain Plaintiffs.'*
Lastly, Plaintiff Bloomingkemper could recommend termination and did recommend tenmination
but lacked any ability to terminate.’®
In the McCain Trial, Defendant Evans presented many issues on which to appeal
the Judgment against Plaintiff Bloomingkemper, not to mention the five (5) years prior to
rendering
a judgment Plaintiff Bloomingkemper
had grounds to appeal his Judgment under
SeP’s
D's Ex. p. 250; 260:17 25; p. 261:1 5; See P’s Ex. “2”, and “3
See P’s Ex. “2” and “3’
‘Texas Capital Securities Management, Inc. v. Sandefer, 80 S.W..3d 260, 268, (Tex.App. Texarkana, 2002).
P's Ex. p.40:18 25; D’s Ex. “O”
See D's and P’s Ex. “3”.
D's Ex. TR. p. 250:13 17; See D's Ex. “H”
D’s Ex. “E’, TR.p. 250:13 17.
PLAINTIFF RONALD BLOOMINGKEMPER’S REPLY TO DEFENDANT KIRK E. EVANS RESPONSE TO PLAINTIFF'S
MOTION FOR INTERLOCUTORY SUMMARY JUDGMENT Page of
TRAP 34.6(f).!“Defendant Evans had to obtain Agent Walther'’s deposition. Altematively, if
Agent Walther was not available for deposition, then, Defendant Evans only had to demonstrate
that fact to the Trial Court. Under either scenario, Plaintiff Bloomingkemper would have
received a new trial. Plaintiff Bloomingkemper has properly presented mmary judgment
evidence to prove as a matter of law that he would have prevailed on appeal.
PRAYER
WHEREFORE, PREMISES CONSIDERED, Plaintiff Bloomingkemper pray
that the Court grant Plaintiff Motion fo Interocutory Summary Judgment; and, for such other
and further relief, both general and special, at law and in equity, to which Plaintiff
may show
himself to be justly entitled.
Respectfully submitted,
By: ls ine V. Kell
Brian D. Womac
State Bar No. 21873600
Angeline V. Kell
State Bar No. 24040009
Womac Law
8301 Katy Freeway
Houston, Texas 77024
(713) 751 Telephone
(713) 751 Facsimile
Email: bian@womaclaw.com
Email: angie@womaclaw.com
ATTORNEYS FOR PLAINTIFF
CERTIFICATE OF SERVICE
I hereby certify that a true and correct copy of the foregoing instrument has been
forwarded by and through his attomeys of record, Christopher L. Ashby, Ashby, LLP, 808
Travis, Suite 401, Houston, Texas, 77002, via facsimile no. (713) 739 1101, and David M. Stiles
TIL, Stiles Law Firm, 3411 Richmond Avenue, #400, Houston, Texas 77046, via electronic mail
trey@treystileslaw.com on this the th of May, 2016.
ls ine V. Kell
Angeline
V. Kell
See P's Ex. “H”
PLAINTIFF RONALD BLOOMINGKEMPER’S REPLY TO DEFENDANT KIRK E. EVANS RESPONSE TO PLAINTIFF'S
MOTION FOR INTERLOCUTORY SUMMARY JUDGMENT Page of
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CAUSE NO. 2014-35398 RONALD BLOOMINGKEMPER, § IN THE DISTRICT COURT OF Plaintiff, HARRIS COUNTY, TEXAS KIRK W. EVANS, Defendant. § JUDICIAL DISTRICT PLAINTIFF RONALD BLOOMINGKEMPER’S REPLYTO DEFENDANT KIRK E EVANS RESPONSE TO PLAINTIFF'S MOTION FOR INTERLOCUTORY SUMMARY JUDGMENT TO THE HONORABLE JUDGE OF SAID COURT: COMES NOW, Plaintiff, RONALD BLOOMINGKEMPER Plaintiff Bloomingkemper”) who respectfully files this, his Reply to Defendant Kirk E. Evans (“Defendant Evans”) Response to Plaintiff's Motion for Interlocutory Summary Judgment (“Response”) and as grounds therefore will respectfully show unto the Court the following: Ia ARGUMENTS & AUTHORITIES It is mandatory to grant a motion for new trial under TRAP 34.6(f) 1 In this case, Plaintiff Bloomingkemper does not have to prove a “case within a case” as he would have received a new tial under TRAP 34.6(f). The plaintiff must show that but for the attomey's negligence the client would have prevailed on appeal. Millhouse, 775 SWa2d 625 , citing Jackson v. Urban, Coolidge, Pennington & Scott, 516 S.W.2d 948, 949 (Tex.Civ.App.—Houston [1st Dist.] 1974, writ ref'd nre.); 2 R. Mallen & J. Smith, Legal Malpractice § 24.39, at 53637 (3d ed.1989). However, in this situation, Plaintiff Bloomingkemper had grounds to appeal his Judgment under TRAP 34.6(f). On August 27, 2010, Defendant Evans filed motions for new trial for relief under TRAP 34.6(f). The Trial On the other hand, if the appeal would have suoceeded in reversing the trial court's judgment and obiaining a more favorable result, then the plaintiff sustained damage because of the attomey's igence. Millhouse, at 627 citing (footnotes omitted); Breslin & McMonigle, Expert ‘Testimony in Legal Malpractice Actions, 6 Litigation 30, 31 (1979 See P’s Ex. “H” PLAINTIFF RONALD BLOOMINGKEMPER’S REPLY TO DEFENDANT KIRK E. EVANS RESPONSE TO PLAINTIFF'S MOTION FOR INTERLOCUTORY SUMMARY JUDGMENT - Page 1 of4 Court never ruled on his Motion for New Trial. Consequently, it was overtumed as a matter of law. Plaintiff Bloomingkemper complied with all of the requirements under TRAP 34.6(f). On May 10, 2011, the Judge Engelhart entered Finding of Facts and Conclusions of Law Pursuant to Court of Appeals’ March 24, 2011 Continuing Abatement Order (“Judge Engelhart’s Order”) The Trial Court found Agent Walther’s missing testimony in the underlying case was “necessary to the resolution of the appeal”. The Trial Court also found “that by deposition, the missing testimony of Agent Vanessa Walther could be replaced.” According Judge Engelhart’s Order, Plaintiff Bloomingkemper complied with the requirements under TRAP 34.6(f). Defendant Evans only needed to seek the deposition of Agent Walther. Altematively, if Agent Walther was not available for deposition, then, Defendant Evans only had to demonstrate that fact to the Trial Court. Under either scenario, Plaintiff Bloomingkemper would have received a new trial. If Defendant Evans had complied with the Trial Court’s Order, Plaintiff Bloomingkemper would have prevailed on appeal. Yet, Defendant falsely misrepresented that he was obtaining Agent Walther's testimony and failed to obey multiple court orders. Altematively, if Evans had insisted that a full and complete record be made of the trial for purposes of appeal, it is clear that a full and complete record did not exist. That fact, alone, would have warranted a new tial. Plaintiff Bloomingkemper’s assistance to the FBI negates “control person” Inastrikingly similar case, a Texas Appellate Court noted that due to perpetrators selling products without permission and outside the market, the broker dealer was not liable as a control perso _— As in Barnes case, the McCain perpetrators sold outside of USA and Plaintiff Bloomingkemper’s knowledge and permission.More importantly, Plaintiff Bloomingkemper’ s TEX. R. APP. P. 34.6(£). See P’s Ex. “3”, AfE R. Bloomingkemper; P’s Ex. “1”, Aff. G. White; Ex. “E” Findings of Facts and Conclusions of Law Pursuant to Court of Appeals’ March 24, 2011 Continuing Abatement Order; in Cause No. 1997 45765; John W. McCain et al., v. RandallL. Garrett; etal.; inthe 151 District Court of Haris County, Texas. Id If the registered representative was selling products outside the markets to which the registered representative had access by reason of his eationship with the broker dealer, the representative was acting outside the broker dealer's control and the broker dealer was not subject to control person liability. Bamesv. SWS Financial Services, Inc., 97, S.W.3d 759, 764 (Tex.App. Dallas 2003, no ) PLAINTIFF RONALD BLOOMINGKEMPER’S REPLY TO DEFENDANT KIRK E. EVANS RESPONSE TO PLAINTIFF'S MOTION FOR INTERLOCUTORY SUMMARY JUDGMENT Page of notification and subsequent assistance to the FBI negates any aspect of “control” over the Ponzi perpetrators. It is undisputed that, upon leaming of the Ponzi scheme, Plaintiff Bloomingkemper notified the authorities. Notifying the authorities is contrary to assisting the Ponzi perpetrators. Plaintiff Bloomingkemper attempted to prevent the Ponzi scheme to the best of his abilities, by notifying the authorities. After notifying the authorities, any position of “control” without admitting any “control,” passed to the authorities. Nevertheless, Plaintiff Bloomingkemper traveled to Nevada, paying his own travel expenses, to assist the FBI by wearing a wire and recording Sims.'°By recording Sims, Plaintiff Bloomingkemper helped the FBI locate the requisite assets to seize which aided the civil forfeiture case in retuming money to the McCain Plaintiffs. tatus of an individual, even a CEO, is not definitive of a control person. u Agent Walther testified that the Ponzi scheme did not operate within any of the companies that Plaintiff Bloomingkemper worked and that Sims and Garrett were “selling away” from the companies affiliated with Plaintiff Bloomingkemper'*Moreover Plaintiff Blo omingkemper lacked any “control” over the main perpetrator of the scheme. Sims did not work with Plaintiff Bloomingkemper nor was he affiliated with any of Plaintiff Bloomingkemper's entities.'? USA fired Garrett on April 26, 1996, prior to any sale of the Ponzi items to the McCain Plaintiffs.'* Lastly, Plaintiff Bloomingkemper could recommend termination and did recommend tenmination but lacked any ability to terminate.’® In the McCain Trial, Defendant Evans presented many issues on which to appeal the Judgment against Plaintiff Bloomingkemper, not to mention the five (5) years prior to rendering a judgment Plaintiff Bloomingkemper had grounds to appeal his Judgment under SeP’s D's Ex. p. 250; 260:17 25; p. 261:1 5; See P’s Ex. “2”, and “3 See P’s Ex. “2” and “3’ ‘Texas Capital Securities Management, Inc. v. Sandefer, 80 S.W..3d 260, 268, (Tex.App. Texarkana, 2002). P's Ex. p.40:18 25; D’s Ex. “O” See D's and P’s Ex. “3”. D's Ex. TR. p. 250:13 17; See D's Ex. “H” D’s Ex. “E’, TR.p. 250:13 17. PLAINTIFF RONALD BLOOMINGKEMPER’S REPLY TO DEFENDANT KIRK E. EVANS RESPONSE TO PLAINTIFF'S MOTION FOR INTERLOCUTORY SUMMARY JUDGMENT Page of TRAP 34.6(f).!“Defendant Evans had to obtain Agent Walther'’s deposition. Altematively, if Agent Walther was not available for deposition, then, Defendant Evans only had to demonstrate that fact to the Trial Court. Under either scenario, Plaintiff Bloomingkemper would have received a new trial. Plaintiff Bloomingkemper has properly presented mmary judgment evidence to prove as a matter of law that he would have prevailed on appeal. PRAYER WHEREFORE, PREMISES CONSIDERED, Plaintiff Bloomingkemper pray that the Court grant Plaintiff Motion fo Interocutory Summary Judgment; and, for such other and further relief, both general and special, at law and in equity, to which Plaintiff may show himself to be justly entitled. Respectfully submitted, By: ls ine V. Kell Brian D. Womac State Bar No. 21873600 Angeline V. Kell State Bar No. 24040009 Womac Law 8301 Katy Freeway Houston, Texas 77024 (713) 751 Telephone (713) 751 Facsimile Email: bian@womaclaw.com Email: angie@womaclaw.com ATTORNEYS FOR PLAINTIFF CERTIFICATE OF SERVICE I hereby certify that a true and correct copy of the foregoing instrument has been forwarded by and through his attomeys of record, Christopher L. Ashby, Ashby, LLP, 808 Travis, Suite 401, Houston, Texas, 77002, via facsimile no. (713) 739 1101, and David M. Stiles TIL, Stiles Law Firm, 3411 Richmond Avenue, #400, Houston, Texas 77046, via electronic mail trey@treystileslaw.com on this the th of May, 2016. ls ine V. Kell Angeline V. Kell See P's Ex. “H” PLAINTIFF RONALD BLOOMINGKEMPER’S REPLY TO DEFENDANT KIRK E. EVANS RESPONSE TO PLAINTIFF'S MOTION FOR INTERLOCUTORY SUMMARY JUDGMENT Page of