CASE NO. 19-CI-05481 JEFFERSON CIRCUIT COURT DIVISION THIRTEEN (13) HON. ANN BAILEY SMITH BORDER COLLIE SOCIETY OF AMERICA, INC. PLAINTIFF vs. NOTICE-MOTION-ORDER

[Filed Electronically] KATHY SOURS, et al. DEFENDANTS

NOTICE

Please take notice that the undersigned will, on Monday February 10, 2020, at

3:45 p.m., in the above courtroom, make the following Motion to enter the attached Order.

MOTION FOR RECONSIDERATION OF THE COURT’S JANUARY 29, 2020 PRO HAC VICE ORDER

I. INTRODUCTION

Lisa Davis filed a Motion for Pro Hac Vice Admission, without notice, on January

15, 2020, pursuant to Kentucky Supreme Court Rule 3.030. Because Ms. Cox was out of

town, with opposing counsel and the Court’s approval, all outstanding motions were

passed until the February 3, 2020 motion hour. Notwithstanding, this Court entered the

Pro Hac Vice Admission Order on January 29, 2020. Respectfully, at the February 3

motion hour, the Court incorrectly did not allow Ms. Cox to raise her concerns about Ms.

Davis, stating that Cox only had ten days in which to object to the admission. No Civil,

Local, or Supreme Court Rule exists that would only allow ten days in which to object to

a pro hac vice admission⎯particularly where the Parties had agreed otherwise and ten

days had not passed from the time the Court entered the Pro Hac Vice Order.1 For the

reasons detailed in the emails of former B Board treasurer Barbara Fitzgerald

1 There is, however, a 10-day period in which to object to a subpoena pursuant to CR 45.04(2) or CR 59.05 Motion to alter, amend or vacate a judgment.

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(“Fitzgerald”) and the Affidavit of former B Board treasurer Debra Blomgren (“Blomgren”),

who was an Assistant Attorney General/Assistant Bureau Chief in Chicago, Illinois,2 both

ultimately resigned because of Lisa Davis and Mark Solinger’s (the BCSA “B Board” so-

called president) problematic acts and directives. More specifically, after notice of the

injunction in July of 2019, as set forth in detail below, Davis and Solinger illicitly ordered

transferred and hidden from Plaintiffs approximately $25,000 of BCSA funds that the B

Board had collected from members⎯for club dues and the 2019 National Specialty3⎯in

direct violation of what became this Court’s October 25, 2019 Temporary Injunction Order.

As a result, at a minimum, as discussed further below, Ms. Davis is a necessary fact

witness to this Action pursuant to SCR 3.130, is in violation of both this Court’s Temporary

Injunction Order, and Justice Cardozo’s U.S. Supreme Court decision, Jones v. SEC.4

Consequently, she cannot be allowed to remain as Defendants’ counsel.

II. FACTUAL BACKGROUND

A. The Blomgren Affidavit

Blomgren was the Assistant Attorney General/Assistant Bureau Chief for Sexually

Violent Persons in the Illinois Attorney General’s Office.5 She served as the BCSA B

Board Treasurer from July 19, 2019 until October 5, 2019 when she resigned because of

the many suspicious acts that Davis requested she execute. By way of example (only),

but not limitation, in her affidavit Blomgren states:

I was given the Paypal account information for Lisa Davis (lisardavis1@gmail.com). . . . I contributed $50 to the B Board’s legal fees

2 Assistant Attorney General/Assistant Bureau Chief, Sexually Violent Persons Bureau, Illinois Attorney General’s Office, Chicago Illinois. See Blomgren CV attached as Exhibit A. 3 See Blomgren CV, attached as Exhibit A. 4 See Jones v. Sec. Exch. Comm’n, 298 U.S. 1, 15-16 (1936). 5 Blomgren’s contact information has been redacted from the public documents because her job created serious safety concerns for her family but will be given to the Court in camera if required.

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through Lisa Davis’ Paypal account. At some time during the months that I was the treasurer for Board B I requested information as to how much money was raised for legal fees. Lisa Davis never responded.6 Lisa Davis contacted me by telephone. She told me she was glad that there was another attorney “on the Board” (she was not on the Board) so she could talk over “legal things” with me. . . . She told me that I could never talk with the attorney for Board B. She told me she was the only person who could speak with the attorney for Board B.7 Lisa Davis told her that we could not use the words “Border Collie” for the name of the bank account or on the Paypal account that we were also were to open. We used the name “National Specialty 2019” for the account. . . . [W]e chose a Wells Fargo Bank. . . . We also opened a business Paypal account to receive [National Specialty] entries, donations, payments for Specialty items etc. and used the name “National Specialty 2019”. Any donations specifically for legal fees were not suppose[d] to go through this Paypal account. 8 I never received an accounting as to how much money came in on the sale of the [logo] items. I was never informed what was done with this money.9 I transferred money from Paypal to the Wells Fargo account every two or three days.10 Mark Sollinger announced that he would be receiving a large check or checks from some companies for the Specialty. . . . I didn’t receive the check(s).11 My duties remained throughout this time of simply transferring the money from the Paypal account to the Wells Fargo account.12 On August 30, 2019 I sent an email to the Board resigning from the treasurer’s position. . . . Lisa Davis called me and asked me not to resign because “it wouldn’t look good”.13

6 See Exhibit B (“Blomgren Aff.”) ¶ 3. 7 Blomgren Aff. ¶ 6 (emphasis added). 8 Id. at ¶ 7 (emphasis added). 9 Id. 10 Id. at ¶ 8. 11 Id. ¶ 9. 12 Id. at ¶ 11 13 Id. at ¶ 14

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At some time in September, Lisa Davis told me to order checks so I could pay bills out some of the money that was accruing in the Wells Fargo account. I ordered the checks but was not given any bills to pay.14 In September [2019], Lisa Davis again told me to start writing checks to pay bills and “empty out” the Wells Fargo account. I told Lisa Davis that I would not “empty” the Wells Fargo account with pending litigation. I believe there was about $25,000 in the Wells Fargo Bank account at that time.15 Barbara Fitzgerald [the B Board treasurer following Blomgren] and I did have conversations about the money after I resigned . . . Barbara wanted to be off of the account. By information and belief, Lisa Davis said that she would take over the Wells Fargo Bank account but ultimately Lisa Davis told Barbara that it was “just too hard” to become the primary account holder on the Wells Fargo Bank account. I told Barbara that it was my opinion that she should not send the funds from the Wells Fargo Bank account anywhere based on requests from Lisa Davis and Mark Sollinger who, on information and belief, had also requested that the money be transferred to him. I suggested to Barbara with pending litigation she should leave the money in the Wells Fargo Bank account. On information and belief, Barbara was requested to send the money to Board member Linda Hurlburt. In a telephone conversation with Linda Hurlburt, Linda told me she was going to place the funds in an account of the Northern California Border Collie Club. During this period, Lisa Davis said she was “going after” me for “slander and libel”. I never heard anything else from Lisa Davis. Barbara ultimately had her brother, who is an attorney, draft an Indemnification document that all Board members had to sign before Barbara would send the money from the Wells Fargo Bank account to Linda Hurlburt.16 On information and belief, Barbara wired the entire amount in the Wells Fargo Bank account to Linda Hurlburt except for approximately $670. . . . Barbara called me and told me that Lisa Davis told Barbara to send the $670 in the Wells Fargo Bank account to the Board B’s attorney. . . . On information and belief and on instructions by Lisa Davis, Barbara sent the remaining funds of approximately $670 to the Board B’s attorney in December 2019.17

14 Id. at ¶ 15 (emphasis added). 15 Id. at ¶ 16 (emphasis added). 16 Blomgren Aff. ¶ 21 (emphasis added). 17 Id. at ¶ 22 (emphasis added).

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B. Barbara Fitzgerald Emails and Indemnification Agreement

Barbara Fitzgerald took over as treasurer following Blomgren’s resignation. As the

October 17, 2019 injunction hearing drew near, she was asked to transfer the Wells Fargo

funds by Davis and others.18 Though Fitzgerald asked simply to transfer the funds to the

Davis firm escrow account, Davis refused, responding that, “it was only for client

accounts.”19 Notwithstanding, prior to this statement that confirmed that she was not

representing the B Board, without either Blomgren or Fitzgerald’s knowledge, Davis

attempted to have herself personally added to the Wells Fargo account⎯though she was

neither on the Board nor counsel to the B Board.20 Ultimately, on the day of the injunction

hearing, October 17, 2019, Solinger executed a written assurance that the funds would

not be spent for anything other than Nationals expenses.21 Fitzgerald transferred most of

the money to Bank of America the following day. After the Court’s Injunction Order,

additional Davis emails followed, instructing Fitzgerald on what to do with the funds that

remained in the Wells Fargo account.22

C. The Court’s Temporary Injunction Order

As noted above, an injunction hearing was held on October 17, 2019 that ultimately

resulted in a Temporary Injunction Order in the BCSA’s favor, which among other things,

prohibited Defendants and third-parties from interfering with the A Board’s conduct of

BCSA business. Clearly, third-parties would include the other “B Board” members and

Lisa Davis. In pertinent part, the Court’s Order read:

18 See Fitzgerald email attached in Exhibit C. 19 Fitzgerald email attached as Exhibit C. 20 See Exhibit C. 21 See executed representation letter signed by Solinger, attached as Exhibit D, and compare to October 17, 2019 Temporary Injunction Hearing date. 22 See additional Davis emails attached as Exhibit C.

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IT IS THEREFORE ORDERED that in accordance with the finding made in the forgoing Findings of Fact and Conclusions of Law, pursuant to CR 65.04 the defendants Kathy Sours and Cathy Sumeracki and anyone acting in concert with them are enjoined from taking any steps that interfere in any way with the duly authorized BCSA Board of Directors (as found in paragraph 8 of this opinion) conduct of BCSA business. IT IS FURTHER ORDERED that the Defendants Kathy Sours and Cathy Sumeracki and anyone acting in concert with them are enjoined from holding themselves out to be BCSA members and/or directors of the BCSA Board.23 Notwithstanding, at a minimum, commencing on the day after the injunction

hearing⎯and months after its notice⎯continuing until after the Injunction Order,24 Davis,

Solinger (and others) intentionally hid BCSA funds from A Board so that they could not

be used to either run the BCSA or pay National Specialty expenses as its Board

determined appropriate, and in direct violation of that Order. (See the B Board’s list of

checks written from BCSA funds commencing on October 18, 2019—the day following

the injunction hearing—through December 6, 2019, as posted by the so-called B Board

Treasurer on a “BC Fanciers of America” Facebook page⎯none of which the BCSA

Board ever saw).25

III. ARGUMENT

A. Reconsideration

This Court and opposing counsel both agreed to pass all outstanding motions until

February 3, 2020 because counsel was out of town. Notwithstanding, the Court entered

23 October 25, 2019, Temporary Injunction Order. 24 Defendants have not provided any accounting for 2019 despite Cox’s repeated requests and discovery requests (which will be the subject matter of a separate motion, along with a Show Cause Motion for direct violation of the Injunction Order). 25 See hard copy (attached as Exhibit E) of Facebook page Bank documentation posted by Linda Hurlbut

and attached link at:

https://www.facebook.com/photo.php?fbid=2928407027178724&set=g.1570834566556236&type=1&thea

ter&ifg=1.

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Davis’ outstanding (and un-noticed) Pro Hac Vice Motion on January 29, 2020—and then

prohibited Cox from objecting because (allegedly) it was past the so-called ten-day

objection window, even though a ten day rule does not exist and even assuming arguendo

that it did, ten days had not passed since the Order had been signed. Consequently, the

BCSA requests that this Court reconsider its ruling and set aside the pro hac vice

admission for the very real reasons set forth infra.

B. Lawyer as Witness

SCR 3.130 (3.7) states: “[a] lawyer shall not act as advocate at a trial in which the

lawyer is likely to be a necessary witness unless: (1) the testimony relates to an

uncontested issue.”26 As noted above, Davis was neither a member of the so-called B

Board nor its counsel⎯by way of example (only), as evidenced by her refusal to let

Fitzgerald transfer the funds to her escrow account, which she stated was reserved for

clients. Notwithstanding, with no authority, Davis was knee-deep in directing both the B

Board’s actions and the BCSA’s money. Indeed, she even attempted to transfer the Wells

Fargo account into her own name⎯without either Treasurers’ (Blomgren or Fitzgerald)

knowledge.

Jones v. SEC states that once notice of an injunction hearing has been received,

an individual’s hands are effectively tied, pending hearing and

determination⎯notwithstanding even whether an injunction order actually issues and

without regard to the ultimate decision.27 Notwithstanding, to date, despite Plaintiffs’

discovery requests and repeated assurances from Defendants’ counsel, the BCSA has

26 SCR 3.130(3.7). 27 See Jones v. Sec, 298 U.S. at 15-16.

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been unable to get an accounting for the funds spent in 2019 by the B Board, which were

purportedly collected for 2019 Nationals expenses, as set forth in the Blomgren affidavit

and the Fitzgerald emails. At a minimum, there are inconsistencies about what was paid

and when. What is clear is that: (1) all payments were made after the notice of the

injunction had been received; (2) most payments were made after the injunction hearing;

and (3) they were made on Davis and Solinger’s directives⎯in violation of this Court’s

Order and the United States Supreme Court’s decision in Jones v. Sec. Exch. Comm’n.28

Consequently, at a minimum, Davis is a necessary witness.

IV. CONCLUSION

Solinger (the B Board’s so-called president) attended the injunction hearing and

had notice. He acted in tandem with Davis⎯despite the fact that Davis was neither on

the B Board nor acting as the Board’s or Defendants’ attorney. Davis, in turn, both

attempted to take over the Wells Fargo account and then failing to do so, co-directed its

transfer and the checks later paid. As such, at a minimum she is a necessary witness to

this Action and cannot act as counsel for Defendants. Consequently, Plaintiff, BCSA,

moves the Court to reconsider its January 29, 2020 Order allowing Lisa R. Davis to

appear as counsel pro hac vice because she cannot be both counsel and witness, as set

forth above.

28 See Jones v. Sec. Exch. Comm’n, 298 U.S. 1, 15-16 (1936).

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Respectfully submitted,

/s/ Clare Feler Cox Clare Feler Cox Donald L. Cox Lynch, Cox, Gilman & Goodman, P.S.C.

500 W. Jefferson Street, Ste. 2100 Louisville, KY 40202

(502) 589-4215 ccox@lynchcox.com doncox@lynchcox.com Counsel for Plaintiff

CERTIFICATE OF SERVICE

I hereby certify that on this 6th day of February 2020, the foregoing document was filed with the Clerk of Court using its CM/ECF filing system which will send electronic notice to all parties registered to receive notice in this case.

/s/ Clare Feler Cox Clare Feler Cox

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CASE NO. 19-CI-05481 JEFFERSON CIRCUIT COURT DIVISION THIRTEEN (13) HON. ANN BAILEY SMITH BORDER COLLIE SOCIETY OF AMERICA, INC. PLAINTIFF vs. KATHY SOURS, et al. DEFENDANTS

ORDER [Filed Electronically]

Motion having been made and the Court sufficiently advised, IT IS HEREBY ORDERED THAT the Court’s Order of January 30, 2020 is set

aside, and Ms. Davis not allowed to participate as counsel in this action.

________________________________ Judge, Jefferson Circuit Court

Tendered by:

/s/ Clare Feler Cox Clare Feler Cox Donald L. Cox Lynch, Cox, Gilman & Goodman, P.S.C. 500 W. Jefferson St., Ste. 2100 Louisville, KY 40202 (502) 589-4215 ccox@lynchcox.com doncox@lynchcox.com Counsel for Plaintiff

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