|
GOINS STRIKES OUT DURING HEARING By Glory Ann Kurtz During a close to five-hour, emotional court hearing for Whitmire vs NCHA, held Friday, Feb. 22, the plaintiff Lainie Whitmire hit a homerun on two major issues. Before the day was over, 236th District Judge Tom Lowe had ruled against the NCHA's Summary Judgment request to dismiss the case and they struck out again when Lowe ruled that NCHA lawyer Eldridge Goins cannot participate as the NCHA attorney at the trial set for March 6 because he could testify during the trial. The Plaintiffs also made it to third base with another motion made by their attorney, James W. Walker of Walker & Sewell, Dallas, Texas, who filed an Emergency Motion to Compel and Motion for Sanctions on Jan. 31. In the Motion, Walker requested sanctions on NCHA attorneys for interferring with his attempts to take pre-trial depositions. Although the judge did not rule on the sanctions, he did ask Walker to submit all of his evidence regarding it so the defendants could see it prior to the trial. Video clips were shown in the court room of several major witnesses being deposed, with the NCHA lawyers telling them not to answer a majority of the questions. NCHA lawyers objected to two witnesses that were on the list to testify during the trial, and Walker explained the importance of their testimony; however, Judge Lowe did not rule on the NCHA's request. The witnesses in question were a polygraph expert and Whitmire's trainer Tommy Marvin. However, Judge Lowe did order Whitmire and the NCHA, as well as their attorneys, to participate in a court-ordered mediation session on Monday, Feb. 25, to try to settle the case before it heads to the courtroom on March 6. NCHA'S REQUESTED SUMMARY JUDGMENT DISMISSAL: Goins contended that proper procedures were taken and that Whitmire was offered appeals, thereby following their rules. Goins pointed out that she had signed the application, in which she agreed to abide by the rules. He also claimed that Whitmire didn't exercise her right to appeal. Walker's law partner, Dan Gus, answered the allegations by stressing that private associations cannot enjoy immunity from prosecution when they participate in illegal acts and that the NCHA failed to comply with their own rules. He said that the NCHA application is a two-way street and the NCHA had to fulfill their part of the bargain. Gus said that, during NCHA Executive Director Jeff Hooper's deposition, Hooper said that Whitmire had violated Rule 37 and 38, which requires a complaint be filed with the NCHA office, along with a $50 fee. No such complaint was ever filed. Gus also said that rule 38 says that a violation must be proven by a preponderance of the evidence and that the burden of proof set forth in the rule is on the NCHA, not the member like Lainie Whitmire. At his deposition, Hooper changed his testimony and concluded that it was not a rule 37 infraction but was addressed under Rules 8 and 9 on an issue of eligibility, which places the burden on the member to prove their innocence ... in other words the accused is guilty unless they can prove they are innocent. She had to prove a negative - that she was NOT a professional trainer and did as much as any person could reasonably be expected to do. In an attempt to meet their arbitrary requirements, Whitmire's lawyers pointed out that she had brought to the hearing a polygraph test she had passed; a professional trainer who said in his opinion, she was definitely not a trainer, and her own testimony and that of her attorney who was himself an NCHA member. After the hearing, she provided notarized statements from individuals whom the NCHA said had given her checks in payment for training. The signed statements said that to their knowledge, Whitmire had never received remuneration for training horses. Gus admitted Whitmire had raced another person's horse in a barrel race, and won money, which she kept - which is legal under NCHA rules, and referred to depositions of NCHA Past President Don Bussey, current President Bob Mayfield and Non-Pro Committee member Gayle Karanges, who said there is a definite difference between training and showing. Gus also told how they had repeatedly requested that Whitmire be given an audience with the Executive Committee, with Goins saying, "It's not possible." NCHA lawyer James Morris also requested Summary Judgment on two other issues - an alleged binding oral agreement, which superseded a letter from Goins, which was made between Clark Brewster, Whitmire's former lawyer, and Eldridge Goins, as well as a false imprisonment charge. On the false imprisonment charge, Morris said the
Plaintiffs could not establish that the imprisonment in a room
behind the announcer's stand during the 2004 NCHA Futurity, was
intentional. He contended that in In response, Gus said that there was "willful intent to detain" as Dave Brian had asked her to come into the room, then he closed and locked the door and stood between Whitmire and the door. She was then threatened with immediate revocation of her membership (even though Goins and Whitmire’s lawyer had agreed she had until January to prove her innocence), as well as her entry in the show going on - where she was to compete in the Amateur competition in the next bunch of cattle. Her husband was also excluded from the room despite repeated attempts to enter. The alleged oral agreement included the fact that
if Lainie accepted a six-month suspension of her membership and
gave up her Amateur status, she would be reinstated as a Non-Pro
member. A written letter from Goins to Brewster did not say that;
however, Brewster claimed that the oral settlement agreement he
had reached on other terms is a typical Morris said that Goins had no authority to make
such an agreement, as it would have had to be ratified by the
Executive Committee, who are the only ones who Gus pointed out that the written agreement sent to Brewster from Goins left no space for Brewster's signature, and that when Brewster had called Goins to be assured that their oral agreement was still in place, Goins said, "Yes." Whitmire had even reiterated the conversation between Goins and Brewster to Susan Marvin at roughly the same time, telling Susan that Brewster had assured Lainie that such an oral agreement between lawyers was customary. Gus also argued against their lawyers saying that Goins didn't have the authority to make such an agreement as he had negotiated for the NCHA on previous deals and acted as a representative of the NCHA throughout the dispute. Also brought up was Don Bussey's testimony where in a deposition he said there was a memo referring to Goins negotiating the agreement. Goins spoke up saying there was no such memo and Henry Wehrmann said the memo had been destroyed. The judge asked that the NCHA produce the memo or provide information of when, where, how and who destroyed it as the Plaintiffs had a right to that information. PLAINTIFF'S MOTION TO
DISQUALIFY Morris gave a personal reference for Goins saying he had practiced with him for 25 years and Goins had been his mentor. "I find the Plaintiff's lawyers treatment of him offensive," said Morris. He continued that in only extreme circumstances is a lawyer disqualified and a client has the right to the counsel they want. The judge ruled that Goins could not serve as the NCHA lawyer on this case. MOTION FOR SANCTIONS: Walker showed video and audio clips which portrayed the NCHA lawyers instructing those being deposed to not answer questions. Walker suggested that the sanctions should be that the jury be allowed to see and hear the video/audio clips, with instructions being that most of the answers were stopped because it would do damage to the NCHA. The judge did not rule on the issue but asked Walker to submit all of the clips he wanted to show to the jury, along with his proposed instruction to be read to the jury. Although there is a possibility the parties could reach an agreement through Monday's imposed mediation, if the mediation does not resolve the dispute the Judge made it clear that the case will proceed to trial on the entirety of the Whitmire's claims on March 6. NCHA’S MOTION TO COMPEL HEARING HELD IN WHITMIRE V NCHA COURT CASE SPARKS COULD FLY IN HEARING SCHEDULED FOR FEB. 15 Feb. 9, 2008 – Fort Worth, Texas The NCHA had requested attorney fees information, along with the fee agreement between the Plaintiff and her lawyer. In response, Walker said that it was premature to provide such information and suggested that the issue be taken up based on what the jury does with the case. “We don’t know if the Court will wish to award fees depending on the outcome at trial," said Walker. The jury trial is scheduled to start on March 6. Also, the defendants demanded that all background and detailed information be produced on the $130,000 devaluation of Whitmire's cutting horses due to the NCHA taking away her Non-Pro cards and the $30,000 loss in prize money, including all expenses she would have incurred as a result of showing. Walker responded that he has produced everything the horse appraisal expert had given him and delivered it to the defendants two days ago. Judge Lowe said that the defendants were entitled to know what damages had been incurred and to what extent, and how the plaintiffs had come up with the figures, requiring the Whitmires to have their damages expert provide the means he used to calculate Lainie Whitmire's damages. The NCHA next requested the production of all of Ray and Lainie Whitmire's recent tax returns from 2002 through 2007. Judge Lowe said that no tax records would be needed to prove income received. Walker stated that he had produced Laine Whitmire's tax records during the time of question of her status. Also requested by the Defendant was a piece of correspondence between Clark Brewster and Lainie Whitmire dated April 13, 2005. The NCHA claimed that this letter is relevant to the agreement between Brewster, who is Whitmire’s previous lawyer, and Goins, where Goins orally promised to let Whitmire have her non-pro card and NCHA membership back following a six-month suspension. The Defendant felt the letter was a key to the claim binding the oral agreement. Walker responded, saying that the defendants had not sought the document in court before and Brewster had deemed the letter part of his “work product” which is privileged by law under lawyer/client relations. He said that neither he nor Lainie Whitmire have a copy of the letter. Walker said he assumed the letter was drafted, prepared but never sent – at least they have no evidence that it was sent to her. Judge Lowe granted the request by the Defendants that the letter be produced. Judge Lowe then directed Walker to argue the Plaintiffs' Emergency Motion to Compel and for Sanctions that he filed with the court on Jan. 31. Mr. Wehrmann, as the NCHA's counsel, objected to hearing the Motion because he claimed they were four hours shy of the three days' notice required under the rules. It was ultimately decided that the Emergency hearing would be reset to a later date. The Court also heard the NCHA's motion to require that the Whitmires post a bond to secure the court costs being incurred by the NCHA as a result of the discovery and depositions being taken. Morris complained that the Plaintiffs took as many as 13 depositions and that the fees and costs were "running the dollars up." He said, "One Plaintiff, Lainie Whitmire, has no money. They say all the claims are Lainie Whitemire's and Ray Whitmire has only one claim. How do we know she can pay the costs if she loses?" Morris then asked for security for costs posted because Lainie Whitmire is unable to earn money and all the money is coming from Ray Whitmire. Judge Lowe said that the only time this is ever done is if the Defendants can show inability to pay by the Plaintiff – and that would only be done under special circumstances. In response, Walker handed the judge a summary chart of the 16 separate depositions taken to date in the case, where the Plaintiffs had paid the costs associated with all but three and had paid as much as $20,000 in video and other costs. Morris said the NCHA’s transcript and video costs were also mounting. The Court decided to defer a ruling on this motion until a later date. Since some hearing notices and filings are not always getting to the opposing counsel in a timely fashion, the judge asked that any further filings made with the court be submitted simultaneously to the opposing counsel by fax, computer or hand delivery. Walker also requested permission to use a “substitute service” on David Kleck, Lainie Whitmire’s former husband, who is living in Houston, saying they had made a diligent effort to have him served with a subpoena for his deposition, but were unable to have him served after repeated attempts. The substitute service would require only that the process server tack the subpoena on the door or leave it with Kleck's current wife. However, the Court asked that Mr. Walker continue his efforts to secure personal service on Mr. Kleck. The discovery date cut-off will be Feb. 20. FEB. 15 HEARING TO BE
IMPORTANT The NCHA’s motions for summary judgment are also set at this same time. The NCHA has filed two motions asking the Court to dismiss Lainie Whitmire’s claims. One NCHA motion asks the Court to dismiss all but the breach of oral promise claim, involving the agreement between Brewster and Goins, and the false imprisonment claim, saying the Court cannot interfere with the NCHA in how it handles its members because it is a private association that followed all of its rules in its dealings with the Whitmires. The second NCHA motion asks the Court to dismiss the oral promise claim and the false imprisonment claim saying there is no evidence to support either claim and they should be dismissed. Finally, the Whitmire motion seeking to disqualify Eldridge Goins as a lawyer on the case for the NCHA has also been set for hearing. This is the motion that asks the Court to remove Goins from the case as a lawyer because he is also a witness in the case. The NCHA has asked the Court to continue as many as three previous hearings on this motion and discovery has even been taken just on this issue. Walker has stated his belief that both the Whitmires and the NCHA have likely spent more than $100,000 in attorneys’ fees and costs between the two parties solely as a result of Goins’ insistence on staying in the case when his status as a witness has been obvious for more than a year. In fact, when Goins deposition was recently taken as a witness in the case, the NCHA did not even object based on the fact he is a lawyer in the case. The Whitmires claim Goins is violating the State Bar of Texas Disciplinary Rule 3.08 which does not allow a lawyer to act as both a lawyer and a witness in the same case. This motion has been pending for more than a year and it appears it will finally be resolved this Friday. WHITMIRE LAWYER FILES EMERGENCY MOTION DUE TO OBSTRUCTION OF DISCOVERY EFFORTS NCHA COMMITTEE MEETS REGARDING
TERMINATION OF By Glory Ann Kurtz Feb. 4, 2008 – Fort Worth, Texas In the 22-page motion, which includes excerpts from three depositions, Walker is accusing the NCHA counsel Henry S. Wehrmann with the law firm of Stradley & Wright, Dallas, Texas, of engaging in conduct that is in violation of the Texas Rules of Civil Procedure, saying he has impaired Whitmire’s ability to obtain discovery to which she is entitled. Attached to the motion are three exhibits which include the complete depositions. Walker said the misconduct has not been limited to isolated infractions but a pattern and practice of obstructing discovery by the defendant’s counsel, citing depositions of past NCHA President Don Bussey, where on at least 25 separate instances, Bussey refused to answer questions after instructions from Wehrmann. Also, during the deposition of former chairwoman of the NCHA Non-Pro Committee Catherine “Bucki” James, Eldridge Goins was present and interrupted the proceedings to make improper comments to the Plaintif’s counsel and instruct the witness how she would answer certain questions, even though he was not representing James. And during a continuation of the deposition of Eldridge Goins, as a fact witness in the case, Wehrmann again resorted to inappropriate objections and instructions not to answer questions. The depositions were taken by Walker and Dan Gus. Walker is asking the court for an immediate hearing to deter the defendant from further obstructing efforts to obtain discovery. Additionally, the plaintiff is requesting a full spectrum of sanctions permitted under Texas Rule of Civil Procedure 212.2(b) to 1) deter future misconduct, 2) punish the defendant for its past misconduct and 3) redress the harm the plaintiff has suffered from the misconduct. He is asking the court to 1) limit their objections during depositions to what is allowed under the rules, 2) limit their instructions not to answer only to those circumstances in the rules, 3) refrain from making inappropriate comments to the Plaintiff’s counsel and 4) properly advise the witnesses to answer the questions posed to them without unreasonable delay or argument. Also, today, Feb. 4, a hearing is being held by
an NCHA-appointed committee regarding the termination of Ray Whitmire’s
membership. Ray Whitmire joined his wife’s lawsuit by filing
a declaratory judgment action when he was told they were going
to revoke his membership. Whitmire recently renewed an offer to
the Committee that he previously made to the NCHA, where if his
membership isn’t terminated, Whitmire will dismiss his declaratory
judgment action and withdraw from the pending suit, except for
his financial support of his wife. Another piece of evidence that has surfaced is an e-mail dated July 18, 2007 from Janie Strotheide, an employee of the NCHA, to lawyer Dan Churchill of Churchill & Churchill, P.C., Moline, Ill. Mr Churchill has been acting as legal counsel for the Whitmires on this case and serveral other legal matters. Ms Strotheide refers to the 2004 NCHA Futurity when she saw Lainie walk out of a room where she had been taken by Dave Brian to meet with at least three other men - Eldridge Goins, Jeff Hooper and Don Bussey - and locked the door behind her. She said Lainie was in tears and white as a sheet, as she told Strotheide how they told her she would not be allowed to cut in the non-pro class she was entered in as she was breaking the rules (even though her former lawyer Clark Brewster, Tulsa, Okla., had made a deal with Goins that nothing would be determined until January.) Janie noted that Lainie Whitmire had told her at the time that for a while during the time she was in the locker room alone with those four men, she felt "really scared." Strotheide's e-mail continued, “I will be more than happy to help Lainie and Ray, and ultimately the entire NCHA membership with this – the sooner some people are out of management positions the better off the organization will be.” Click on the following link for a copy of the Plaintiff’s Emergency Motion to Compel and Motion for Sanctions – along with three exhibits which include the depositions of Don Bussey, Catherine “Bucki” James and E. Eldridge Goins Jr. which was filed in the District Court of Tarrant County on Jan. 31. |
HEARINGS FOR “ISSUES” ON BOTH SIDES TO BE HEARD MARCH 6 Feb. 28, 2008 – Fort Worth, Texas Lainie’s husband, Ray, had also joined the suit when he asked for a declaratory judgment by the court, following the removal of his membership by the Executive Committee. Ray, however, was not asking for any damages. A special committee later upheld the Executive Committee’s decision to remove his membership, for aiding in the lawsuit by paying his wife’s legal bills. During a hearing held Feb. 22, Judge Lowe denied several NCHA motions for summary judgment which asked the court for dismissal of all claims against them, including a false imprisonment claim. NCHA HEARING COMMITTEE AFFIRMS EXECUTIVE COMMITTEE’S REVOCATION OF RAY WHITMIRE’S NCHA MEMBERSHIP By Glory Ann Kurtz Ray Whitmire is the husband of Lainie Whitmire, original plaintiff in the case of Whitmire vs. NCHA filed in 2006 after NCHA revoked her membership, and right to show in NCHA approved cutting competition as a Non-Professional contestant. The case is scheduled to go to trial March 6, 2008 in Fort Worth, Texas. Ray Whitmire was notified Feb. 12, 2008 of the Ray Whitmire had previously offered both the NCHA Executive Committee and the Review Hearing Committee that if he was permitted to remain an NCHA member and not have that right withdrawn as threatened, he would voluntarily dismiss his Declaratory Judgment count against NCHA consistent with his two letters to both the Executive Committee and the Hearing Committee Feb. 4. NCHA rejected that offer and proceeded to remove him as a member by the most recent action and letter. An NCHA Appeal Hearing Committee, appointed by NCHA President Bob Mayfield, consisting of Chairman Dick Gaines, Lindy Burch, Dennie Dunn, Jo Ellard, Keith Hargrove, Eddie Stewart and Don Strain met on Feb. 4, 2008. On Feb. 8, the committee issued a report saying that in a vote of 6-1, they affirmed the action of the Executive Committee in revoking Whitmire’s membership. Dissenting was Keith Hargrove. Also present at the meeting were NCHA Executive Director Jeff Hooper, Administrative Assistant Julie Davis and the NCHA Attorney Eldridge Goins. NCHA President Bob Mayfield and NCHA President-Elect Bronc Willoughby were also in attendance during a portion of the hearing. The document, plus a letter dated Feb. 12, was sent to Whitmire. The letter stated that Whitmire’s membership was being revoked “unless and until (i) there is no longer a lawsuit against the Association in which Ray Whitmire is participating and for which he is providing support and (ii) all legal payment of attorney fees incurred by the NCHA as a result of the actions of Ray Whitmire, and (iii) he has demonstrated and provided assurances that his conduct will conform to the NCHA rules and will not be detrimental to the interest of the Association or to its programs, policies, objectives or the harmonious relationship of its members.” On Friday, Feb. 15, an Emergency Motion to Compel and for Sanctions, due to obstruction of discovery efforts, which was filed by the Plaintiffs, will be heard in Judge Lowe’s Court in Fort Worth. The motion complains about the conduct of the NCHA’s lawyers during depositions and seeks the full range of sanctions allowed under the rules. The Plaintiffs, represented by James Walker of Walker Sewell has also filed a motion for summary judgment with the court and a motion to disqualify Eldridge Goins as a lawyer on the case for the NCHA since he is a witness in the case. An NCHA motion for summary judgment will also be held. A jury trial is set for March 6 in Judge’s Lowe’s court in the Tarrant County Court House in Fort Worth. Click on the links below for the documents described above. Whitmire
document 1 COURT DENIES DISMISSAL OF WHITMIRE SUIT Dec. 12, 2007 – Fort Worth, Texas The NCHA had previously filed an objection to the Courts jurisdiction arguing that because Texas courts recognize the right of private associations to create and interpret their own rules and govern their own affairs, courts cannot interfere with private associations or decisions made within the organization. Walker responded by pointing out that the NCHA ignored the exception to the judicial non-intervention doctrine, or what he called the “so long as” exception. He said the courts should not interfere so long as the association does not act capriciously, arbitrarily and works within the bounds of decency and common sense. He said the law does not allow private associations to violate the law and fundamental rules of due process. “We are going to complete the depositions and get ready for trial,” said Walker. The first depositions were scheduled to begin on Dec. 11. HEARING HELD ON WHITMIRE V Dec. 7, 2007 – Fort Worth, Texas During the hearing, NCHA attorney James Morris presented the judge with a list of cases upholding the right of private associations to govern themselves and to create and interpret their own rules without interference from the court system. Morris contended that all but two of Lainie Whitmire’s claims against the NCHA fell within this area and should be dismissed because the trial court has no jurisdiction. He said that the only two causes of action that did not fall squarely in these areas were 1) the allegations of false imprisonment charges against NCHA officials and Eldridge Goins, the association’s lawyer and 2) allegations that the NCHA breached an agreement with Whitmire’s former counsel when Goins agreed that if Whitmire accepted a six (6) month suspension of her NCHA membership benefits and accepted the revocation of her amateur status, her NCHA membership and non-pro status would be reinstated. Whitmire’s lawyer, James Walker, responded by pointing out that the NCHA was conveniently ignoring the exception to the judicial non-intervention doctrine, or what he called the “so long as exception”. He said that the same legal authority relied upon by the NCHA made clear that courts should not interfere in the governance and affairs of a private association so long as ... the association does not act capriciously, arbitrarily and works within the bounds of decency and common sense. The doctrine of judicial non-intervention is not the “blank check” or “carte blanche” doctrine, Walker argued, and it does not allow private associations to violate the law and fundamental rules of due process. Whitmire claimed that the NCHA’s application of rules is inconsistent and this raises due process concerns. In an interesting twist, Walker argued that since the NCHA is receiving over $1 million a year in state tax dollars to fund events that Whitmire is denied the right to compete in, a question exists as to whether the NCHA is subject to even higher scrutiny when looking to see if it is treating its members in violation of its own rules and rules of Texas due process. Walker argued that this higher scrutiny of NCHA membership governance should result from its acceptance and use of state tax money which destroys its claim to be a truly private non-profit association. Walker listed several examples of claims Whitmire has asserted that illustrate a violation of NCHA rules and Texas due process rules, including 1) the various tort claims Whitmire has asserted, such as false imprisonment and intentional infliction of emotional distress and 2) the breach of contract claims arising from Goins’s promise to give her back her membership and non-pro card. These claims arise for the most part from the conduct of General Counsel Goins and NCHA Executive Director Jeff Hooper while acting in their official capacities. “The NCHA needs to recognize that our suit is a tort case and a breach of contract case,” said Walker. “These claims would be actionable even if she was a member today.” Walker contends the rules do not give the Association the right to apply them inconsistently or selectively – accusing the Association of interpreting and applying the rules the way they want regardless of how they might read. He went on to argue that none of the claims should be dismissed. “We’re entitled to our day in court,” said Walker. Following presentations by both the plaintiffs and the defendants, Judge Lowe said that since the first depositions were scheduled to start on Dec. 11, he would have a ruling on the case by today (Friday, Dec. 7) or Monday, Dec. 10. |
click text below click text below
|
