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CAUSE NO. 2014-35398
RONALD BLOOMINGKEMPER, § IN THE DISTRICT COURT OF
Plaintiff,
HARRIS COUNTY, TEXAS
KIRK W. EVANS, §
§
Defendant. § 113 JUDICIAL DISTRICT
PLAINTIFF'S MEMORADNUM IN SUPPORT OF PLAINTIFF'S
MOTION FOR PARTIAL UMMARY JUDGMENT
TO THE HONORABLE JUDGE OF SAID COURT:
COMES NOW, RONALD BLOOMINGKEMPER’s, Plaintiff herein files, this
his Memorandum in Support of the Plaintiff’ s Motion for Summary Judgment and in response to
a question presented by the Court, Plaintiff Bloomingkemper respectfully responds and
supplements as follows:
Question: Is a remand from an appellate court “a more favorable result” and
sufficient to prove causation in an appellate legal malpractice case? Plaintiff Bloomingkemper
believes that a remand is sufficient to prove causation as to an appellate legal malpractice case.
Millhouse v. Wiesenthal, 775 S.W.2d 626, 628 (Tex.1989). In other words, depending upon the
issue appealed, Plaintiff Bloomingkemper does not have to prove he would have won the
McCain trial just that he would have prevailed on appeal. Millhouse, 775 S.W.2d 626, 628.
Plaintiff Bloomingkemper has been unable to locate a case directly on point However the
Supreme Court of Texas clearly states that the plaintiff must show that but for the attomey's
negligence the client would have prevailed on appeal. Millhouse, at 627, citing Jackson v.
Urban, Coolidge, Pennington & Scott, 516 S.W.2d 948, 949 (Tex.Civ.App. Houston [1st Dist.]
1 On the other hand, if the appeal would have succeeded in reversing the trial court's judgment and obtaining a
more favorable result, then the plaintiff sustained damage because of the attomey's negligence. Millhouse, at 627
citing (footnotes omitted); Breslin & McMonigle, Expert Testimony in Legal Malpractice Actions, 6 Litigation 30,
31 (1979)
PLAINTIFF'S MEMORANDUM IN SUPPORT OF ITS MOTION FOR SUMMARY JUDGMENT - Page 1 of
1974, writ refd nre); 2 R. Mallen & J. Smith, Legal Malpractice at 53637 (3d
ed.1989). This is so because, if the appeal would not have been successful, the attomey’
negligence could not have caused the plaintiff any damage; altematively, if the appeal could
have obtained a more favorable result, the plaintiff sustained damage because of the attomey's
negligence. Id. at 627. Obtaining a new trial from the appeal would be a more favorable result
than having $700,000.00 plus adverse judgment rendered against Plaintiff Bloomingkemper
Therefore, in this case, the Court oes not have to review the records of the entire McCain rial
The Court need nly review the records regarding Defendant Evans conduct during the appeal
process to determine if a more favorable result would have occurred on appeal. This
is because
Defendant Evans would have filed an appellant brief arguing the similar points he made in his
Texas Rule of Appellate Procedure TRAP 346(f) motion for new trial Altematively, the
McCain Trial record and logic will support
a reversal of the adverse judgment which merit
granting Plaintiff's motion for partial summary judgment
WHEREFORE, PREMISES CONSIDERED, Plaintiff Bloomingkemper prays
that the Court grant his Motion for Partial Summary Judgment on the issue of legal malpractice
and deny Defendant Kirk Evans’ Motion for 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.
On August 27, 2010, Defendant Evans filed a motion for new trial under TRAP 34.6(f).
PLAINTIFF'S MEMORANDUM IN SUPPORT OF ITS MOTION FOR SUMMARY JUDGMENT Page of
Respectfully submitted,
By;/s/ Angeline 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: Brian@WomacLaw.com
Email: Angie@WomacLaw.com
ATTORNEY FORPLAINTIFF
CERTIFICATE OF SERVICE
Thereby certify that a true and correct copy of the foregoing instrument has been
forwarded byand through his attomeys of record, Christopher L. Ashby, A: , LLP, 808
Travis, Suite 401, Houston, Texas, 77002, via facsimile no. (713) 739 1101, and David M. Stiles
TIL, Stiles Law Fim, 3411 Richmond Avenue, #400, Houston, Texas 77046, via electronic mail
trey@treystileslaw.com on this the of May, 2016.
ls ine V. Ke
Angeline V. Kell
PLAINTIFF'S MEMORANDUM IN SUPPORT OF ITS MOTION FOR 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. § 113 JUDICIAL DISTRICT PLAINTIFF'S MEMORADNUM IN SUPPORT OF PLAINTIFF'S MOTION FOR PARTIAL UMMARY JUDGMENT TO THE HONORABLE JUDGE OF SAID COURT: COMES NOW, RONALD BLOOMINGKEMPER’s, Plaintiff herein files, this his Memorandum in Support of the Plaintiff’ s Motion for Summary Judgment and in response to a question presented by the Court, Plaintiff Bloomingkemper respectfully responds and supplements as follows: Question: Is a remand from an appellate court “a more favorable result” and sufficient to prove causation in an appellate legal malpractice case? Plaintiff Bloomingkemper believes that a remand is sufficient to prove causation as to an appellate legal malpractice case. Millhouse v. Wiesenthal, 775 S.W.2d 626, 628 (Tex.1989). In other words, depending upon the issue appealed, Plaintiff Bloomingkemper does not have to prove he would have won the McCain trial just that he would have prevailed on appeal. Millhouse, 775 S.W.2d 626, 628. Plaintiff Bloomingkemper has been unable to locate a case directly on point However the Supreme Court of Texas clearly states that the plaintiff must show that but for the attomey's negligence the client would have prevailed on appeal. Millhouse, at 627, citing Jackson v. Urban, Coolidge, Pennington & Scott, 516 S.W.2d 948, 949 (Tex.Civ.App. Houston [1st Dist.] 1 On the other hand, if the appeal would have succeeded in reversing the trial court's judgment and obtaining a more favorable result, then the plaintiff sustained damage because of the attomey's negligence. Millhouse, at 627 citing (footnotes omitted); Breslin & McMonigle, Expert Testimony in Legal Malpractice Actions, 6 Litigation 30, 31 (1979) PLAINTIFF'S MEMORANDUM IN SUPPORT OF ITS MOTION FOR SUMMARY JUDGMENT - Page 1 of 1974, writ refd nre); 2 R. Mallen & J. Smith, Legal Malpractice at 53637 (3d ed.1989). This is so because, if the appeal would not have been successful, the attomey’ negligence could not have caused the plaintiff any damage; altematively, if the appeal could have obtained a more favorable result, the plaintiff sustained damage because of the attomey's negligence. Id. at 627. Obtaining a new trial from the appeal would be a more favorable result than having $700,000.00 plus adverse judgment rendered against Plaintiff Bloomingkemper Therefore, in this case, the Court oes not have to review the records of the entire McCain rial The Court need nly review the records regarding Defendant Evans conduct during the appeal process to determine if a more favorable result would have occurred on appeal. This is because Defendant Evans would have filed an appellant brief arguing the similar points he made in his Texas Rule of Appellate Procedure TRAP 346(f) motion for new trial Altematively, the McCain Trial record and logic will support a reversal of the adverse judgment which merit granting Plaintiff's motion for partial summary judgment WHEREFORE, PREMISES CONSIDERED, Plaintiff Bloomingkemper prays that the Court grant his Motion for Partial Summary Judgment on the issue of legal malpractice and deny Defendant Kirk Evans’ Motion for 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. On August 27, 2010, Defendant Evans filed a motion for new trial under TRAP 34.6(f). PLAINTIFF'S MEMORANDUM IN SUPPORT OF ITS MOTION FOR SUMMARY JUDGMENT Page of Respectfully submitted, By;/s/ Angeline 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: Brian@WomacLaw.com Email: Angie@WomacLaw.com ATTORNEY FORPLAINTIFF CERTIFICATE OF SERVICE Thereby certify that a true and correct copy of the foregoing instrument has been forwarded byand through his attomeys of record, Christopher L. Ashby, A: , LLP, 808 Travis, Suite 401, Houston, Texas, 77002, via facsimile no. (713) 739 1101, and David M. Stiles TIL, Stiles Law Fim, 3411 Richmond Avenue, #400, Houston, Texas 77046, via electronic mail trey@treystileslaw.com on this the of May, 2016. ls ine V. Ke Angeline V. Kell PLAINTIFF'S MEMORANDUM IN SUPPORT OF ITS MOTION FOR SUMMARY JUDGMENT Page of