ACCEPTED
01-15-00551-CV
FIRST COURT OF APPEALS
HOUSTON, TEXAS
7/6/2015 6:49:27 PM
CHRISTOPHER PRINE
CLERK
No. 01-15-00551-CV
In the Court of Appeals for the FILED IN
1st COURT OF APPEALS
First District of Texas HOUSTON, TEXAS
Houston 7/6/2015 6:49:27 PM
CHRISTOPHER A. PRINE
In re Camp la Junta 1928, LP, Blake Smith, Camp la Clerk
Junta, Inc., and
CLJ Management Systems, L.L.C.
Relators
______________________________________________________
Original Proceeding from the 333rd District Court of Harris County, Texas
Cause No. 2012-31192
Honorable Joseph “Tad” Halbach, Presiding
______________________________________________________
RESPONSE TO PETITION FOR WRIT OF MANDAMUS
______________________________________________________
Rusty Hardin Rusty Hardin & Associates, LLP
State Bar No. 08972800 5 Houston Center
Andy Drumheller 1401 McKinney, Suite 2250
State Bar No. 00793642 Houston, Texas 77010
Bob Wynne Telephone: 713–652–9000
State Bar No. 24060861 Facsimile: 713–652–9800
Email: rhardin@rustyhardin.com
Email: adrumheller@rustyhardin.com
Email: bwynne@rustyhardin.com
Attorneys for Plaintiffs/Real Parties
In Interest Johnny Doe, Jane Doe, and
John Doe
TABLE OF CONTENTS
TABLE OF CONTENTS .......................................................................................... ii
TABLE OF AUTHORITIES ................................................................................... iii
Joint Statement of The Case and Statement of Facts ......................................1
Argument .........................................................................................................5
The Camp Is Not Entitled to The Issuance of a Writ of Mandamus ..........5
A. The District Court Did Not Abuse Its Discretion ....................................6
B. The Camp Will Not Suffer Irreparable Harm Absent Mandamus ........16
C. The Camp Lacks Standing to Bring This Mandamus Proceeding.........17
D. Counsel’s Statements at the Oral Hearing Are Admissible Evidence ...18
Conclusion .....................................................................................................19
CERTIFICATE OF COMPLIANCE .......................................................................20
CERTIFICATE OF SERVICE ................................................................................20
APPENDIX ..............................................................................................................21
ii
TABLE OF AUTHORITIES
Cases
Banda v. Garcia,
955 S.W.2d 270 (Tex. 1997) ................................................................................18
Braden v. Downey,
811 S.W.2d 922 (Tex. 1991) ................................................................................16
Brady v. Fourteenth Court of Appeals,
795 S.W.2d 712 (Tex. 1990) ..................................................................................6
Holloway v. Fifth Court of Appeals,
767 S.W.2d 680 (Tex. 1989) ..................................................................................6
Hunt v. Bass,
664 S.W.2d 323 (Tex. 1984) ................................................................................17
In re Angelini,
186 S.W.3d 558 (Tex. 2006) ..................................................................................6
In re Carrington,
438 S.W.3d 867 (Tex. App.—San Antonio 2014) .................................................6
In re Ford Motor Co.,
988 S.W.2d 714 (Tex. 1998) ..................................................................................6
In re Houston Chronicle Pub. Co.,
64 S.W.3d 103 (Tex. App.—Hous. [14th Dist.] 2001) ........................................17
In re KC Greenhouse Patio Apartments, L.P.,
445 S.W.3d 168 (Tex. App.—Hous. [1st Dist.] 2012) ...........................................7
In re Prudential Ins. Co. of Am.,
148 S.W.3d 124 (Tex. 2004) ...............................................................................16
iii
In re Sweed,
157 S.W.3d 929 (Tex. App.—El Paso 2005) .........................................................7
Johnson v. Fourth Court of Appeals,
700 S.W.2d 916 (Tex. 1985) ..............................................................................7, 8
Keith v. Keith,
221 S.W.3d 156 (Tex. App.—Hous. [1st Dist.] 2006) .........................................18
Lutheran Social Services, Inc. v. Meyers,
460 S.W.2d 887 (Tex. 1970) ..................................................................................8
Pat Walker & Company, Inc. v. Johnson,
623 S.W.2d 306 (Tex. 1981) ..................................................................................8
Sneed v. Webre,
___ S.W.3d ___, 2015 WL 3451653 (Tex. May 29, 2015) .................................17
Terrazas v. Ramirez,
829 S.W.2d 712 (Tex. 1991) ................................................................................17
Walker v. Packer,
827 S.W.2d 833 (Tex. 1992) ....................................................................... 6, 8, 16
Wortham v. Walker,
128 S.W.2d 1138 (Tex. 1939) ................................................................................6
Statutes
TEX. R. CIV. PROC. §§ 173.1–173.7 ...........................................................................8
iv
JOINT STATEMENT OF THE CASE AND STATEMENT OF FACTS
In July 2009, Plaintiff/Real Party in Interest Johnny Doe (then an 11-year-old
boy, now a 17-year-old young man) was sexually assaulted by Senior Camp
Counselor Matthew Bovee on multiple occasions through acts of anal penetration
and genital grouping. In May 2011, Bovee pleaded guilty to a felony offense for his
criminal actions.
In May 2012, Johnny Doe by and through his parents, Jane and John Doe
(collectively, the “Doe Family”) filed this lawsuit against Defendants/Relators Camp
La Junta 1928, L.P., Blake Smith, Camp La Junta, Inc., and CLJ Management
Systems, L.L.C. (collectively, the “Camp”) for various causes of action. The
Camp’s unlawful acts and omissions before, during, and after the sexual abuse are
detailed more thoroughly in the Doe Family’s Second Amended Petition. See
Appendix to Petition Writ of Mandamus, Tab B. As a brief factual summary, the
Camp committed numerous tortious acts (independently and vicariously) (a) through
their own acts of defamation, misrepresentation, and cover-up; (b) arising from their
employment, supervision, and retention of Bovee; (c) through their investigation of
and failure to report sexual abuse; and (d) through various other acts and omissions
at issue in this civil action. Id. at ¶¶ 11–87.
Of particular importance, the Camp made numerous public statements that
Johnny Doe was lying about the sexual abuse, had emotional problems, was a
1
problem child, and belonged to a litigious family. Id. at 9–11. In addition, the Camp
repeatedly made public statements that Johnny Doe was the only witness and the
only person who complained about Bovee, while strongly emphasizing denials made
by Bovee and openly suggesting that the sexual abuse could not have happened. Id.
In reality, the Camp knew that these statements were false at the time the statements
were made, yet made these intentionally-false statements to parents, counselors, and
law enforcement in order to cover up the sexual abuse. Id.
To this day, the Camp has not publicly recanted its false, defamatory
statements about Johnny Doe, has not publicly admitted its wrongdoings, and has
not publicly admitted that Johnny Doe was sexually molested. In fact, the Camp
continues to claim that the sexual abuse did not occur, continues to deny any
wrongdoing, and continues to blame Johnny Doe’s parents and others as the cause
of his injuries.
On the eve of a prior trial setting in September 2014, the Camp filed an initial
Motion for Appointment of Guardian Ad Litem. See Motion for Appointment of
Guardian Ad Litem, Appendix to Response, Tab A. That motion was orally denied
by the District Court at the conclusion of a telephonic hearing.
In May 2015 (again on the eve of trial), the Camp filed a First Amended
Motion for Appointment of a Guardian Ad Litem, seeking the same relief on the
same grounds as it had done the year before. During the oral hearing, counsel for
2
the Camp acknowledged that the Camp was seeking the appointment of a guardian
ad litem solely because the Camp contended that a non-monetary settlement demand
made by Johnny Doe—referred to as a “poison pill”—would ensure that this civil
action would go to trial. Hearing Transcript, Appendix to Petition for Writ of
Mandamus, Tab E at 4, 13, 20–25.
The so-called “poison pill” in this instance is a demand by Johnny Doe that
the Camp publicly recants its prior misrepresentations about Johnny Doe, publicly
admits each of its wrongful acts, and publicly acknowledges that Johnny Doe was
sexually molested. Contrary to the Camp’s erroneous position, Johnny Doe himself
(not his parents) demanded this non-monetary relief because it is the only way to
cure the Camp’s previous public misrepresentations regarding his character, his
honesty, and his sexual abuse. Hearing Transcript at 25.
At the conclusion of the oral hearing, the District Court denied the Camp’s
amended motion, having concluded that there was no adverse interest between
Johnny Doe and his parents. Hearing Transcript at 26. The Camp has now filed a
Petition for Writ of Mandamus with the Appellate Court, requesting that the
Appellate Court appoint a guardian ad litem to advise the District Court on whether
Johnny Doe’s own, personal, non-monetary settlement demands are within his own
best interests. See Petition for Writ of Mandamus (“Mandamus Brief”) at 2, 29;
Hearing Transcript, at 13, 20–25.
3
Looking aside the fact that both a guardian ad litem and the District Court are
legally powerless to force Johnny Doe to forego his own settlement demands—as
expressly recognized by the District Court and the Camp—there is simply no legal
basis or factual evidence to warrant the appointment of a guardian ad litem in this
matter. See Hearing Transcript at 9, 23. Through its motion and in this mandamus
proceeding, the Camp asserts that the “poison pill” is being advanced by John and
Jane Doe against Johnny Doe’s wishes; hence an adverse interest has arisen between
Johnny Doe and his parents. See Petition for Writ of Mandamus (“Mandamus
Brief”) at 29; Hearing Transcript at 13, 20–25. The Camp’s contention is entirely
wrong. Because Johnny Doe is the individual driving the non-monetary relief at
issue, there is no adverse interest between him and his parents. Id.
Even more so, the Camp lacks legal standing to bring this mandamus
proceeding on behalf of Johnny Doe as (a) it does not act in a representative capacity
for Johnny Doe, and (b) it has not suffered any harm capable of being remedied. See
Petition for Writ of Mandamus at 28 (“The irreparable harm to be suffered in this
case would be visited on Johnny Doe.”) And, considering that the Camp (1) covered
up the sexual abuse before, during, and after the actual period of molestation,1 (2)
publicly defamed Johnny Doe to multiple people on multiple occasions,2 (3) publicly
1
Second Amended Petition at ¶¶ 23–41.
2
Id. at ¶¶ 38–46.
4
supported Bovee in multiple written letters,3 (4) has actually countersued John and
Jane Doe,4 (5) has publicly blamed John and Jane Doe as the cause of Johnny Doe’s
damages,5 and (6) has publicly disclosed Johnny Doe’s name on multiple occasions
previously,6 it appears that the Camp’s mandamus proceeding is not a good-faith
effort to watch out for Johnny Doe’s best interests, but simply a pretext designed to
delay the trial of this matter further. After all, if the Camp truly cared about Johnny
Doe’s best interests, the Camp should have welcomed Johnny Doe’s own thoughts
and words on the subject, instead of diligently attempting to exclude the seventeen-
year-old victim’s own viewpoints.7
ARGUMENT
THE CAMP IS NOT ENTITLED TO THE ISSUANCE OF A WRIT OF MANDAMUS
A writ of mandamus is an extraordinary remedy that should be reserved for
situations involving “manifest and urgent necessity.” Holloway v. Fifth Court of
3
Id. at ¶ 38.
4
Joint Motion to Transfer Venue, and Subject Thereto Original Answers, Special
Exceptions, and Counterclaims to Plaintiffs’ Second Amended Petition With Requests for
Disclosures at 15–19, Appendix to Response, Tab B.
5
See, e.g., Motion to Designate Responsible Third Party, Appendix to Response, Tab C;
Motion to Strike and Objection to Motion to Designate Responsible Third Party, Appendix to
Response, Tab D.
6
Deposition of Megan Mooney, Ph.D., 83:9–83:18 (Sept. 8, 2014), Appendix to Response,
Tab E.
7
See Post-Hearing Submission of Evidence (Exhibit B is filed under seal), Appendix to
Response, Tab F; Objection to and Motion to Strike Post-Hearing Submission of Evidence,
Appendix to Response, Tab G.
5
Appeals, 767 S.W.2d 680, 684 (Tex. 1989). To be entitled to a writ of mandamus,
the realtor bears the burden of demonstrating that the trial court clearly abused its
discretion in committing error and that the realtor has no adequate remedy at law to
redress the error. Walker v. Packer, 827 S.W.2d 833, 839–40 (Tex. 1992); In re
Carrington, 438 S.W.3d 867, 868–69 (Tex. App.—San Antonio 2014).
“Mandamus is a writ which issues to require the execution of a matter whose
merit is beyond dispute, and may not be employed as scales in which to balance the
weight of evidence or to bridge the gap between broken or disconnected facts.”
Wortham v. Walker, 128 S.W.2d 1138, 1151 (Tex. 1939); see also In re Ford Motor
Co., 988 S.W.2d 714, 722 (Tex. 1998) (“There is also a factual dispute about who is
responsible for the car’s changed condition that precludes us from granting
mandamus relief.”) Accordingly, “[i]t is well established Texas law that an appellate
court may not deal with disputed areas of fact in an original mandamus proceeding.”
In re Angelini, 186 S.W.3d 558, 560 (Tex. 2006), quoting Brady v. Fourteenth Court
of Appeals, 795 S.W.2d 712, 714 (Tex. 1990).
A. THE DISTRICT COURT DID NOT ABUSE ITS DISCRETION
Here, the Camp argues that the District Court abused its discretion when it
concluded that there was no adverse interest between Johnny Doe and his parents,
such that a guardian ad litem was not required to be appointed under Texas Rule of
Civil Procedure 173.2(a)(1). An appellate court reviews the decision to appoint a
6
guardian ad litem under an abuse of discretion standard.8 See In re KC Greenhouse
Patio Apartments, L.P., 445 S.W.3d 168, 171 (Tex. App.—Hous. [1st Dist.] 2012).
A clear abuse of discretion warranting correction by mandamus occurs when
a court issues a decision which is without basis or guiding principles of law. See
Johnson v. Fourth Court of Appeals, 700 S.W.2d 916, 917 (Tex. 1985).
Accordingly, an “appellate court rarely interferes with a trial court’s exercise of
discretion.” In re Sweed, 157 S.W.3d 929, 930 (Tex. App.—El Paso 2005). And, a
“relator who attacks the ruling of a trial court as an abuse of discretion labors under
a heavy burden.” Johnson, 700 S.W.2d at 917, citing to Lutheran Social Services,
Inc. v. Meyers, 460 S.W.2d 887, 889 (Tex. 1970).
For purposes of mandamus, the relator must establish that the facts and law
permit the trial court to make but one decision. Johnson, 700 S.W.2d at 917. This
determination is essential because mandamus will not issue to control the action of
8
In their mandamus brief, the Camp argues that, as long as it introduced a scintilla of
evidence in support of an adverse interest between Johnny Doe and his parents, the District Court
had no discretion and was required as a matter of law to appoint a guardian ad litem. The Camp
appears to have invented this novel scintilla-of-evidence standard for purposes of this mandamus
proceeding because there is no jurisprudence or scholarly analysis to support the imposition of
such a standard in the Rule 173 context. In fact, it strikes the Doe Family as constitutionally
problematic for the State to deprive parents of their parental duties merely because a litigation
adversary has attempted to offer a scintilla of evidence to support an adverse interest between
parent and child. See In re KC Greenhouse Patio Apartments, L.P., 445 S.W.3d 168, 174 (Tex.
App.—Hous. [1st Dist.] 2012). In addition, it seems particularly unwise to deprive trial courts of
the discretion to weigh and to consider evidence during pre-trial proceedings. Lastly, this
Appellate Court appears to have already determined that district courts are afforded considerable
discretion in determining whether to appoint a guardian ad litem or not. Id. at 171 (“We review
an appointment of a guardian ad litem under an abuse of discretion standard.”)
7
a lower court in a matter involving discretion. Pat Walker & Company, Inc. v.
Johnson, 623 S.W.2d 306, 308 (Tex. 1981).
With respect to the resolution of factual issues or matters committed to the
trial court’s discretion, the reviewing court may not substitute its judgment for that
of the trial court. Walker, 827 S.W.2d at 839. The relator must therefore establish
that the trial court could reasonably have reached only one decision. Id. at 840. Even
if the reviewing court would have decided the issue differently, it cannot disturb the
trial court’s decision unless it is shown to be arbitrary and unreasonable. Id.
Rule 173 of the Texas Rules of Civil Procedure governs the procedure and
grounds for the appointment of a guardian ad litem. TEX. R. CIV. PROC. §§ 173.1–
173.7. In sum, a trial court may appoint a guardian ad litem “only if the next friend
or guardian appears to the court to have an interest adverse to the party.” Id. at §
173.2.
Once appointed, a guardian ad litem “acts as an officer and advisor to the
court.” Id. at § 173.4. In exercising these duties, a guardian ad litem has two limited
functions: (1) a guardian ad litem may participate at mediation, and (2) a guardian
ad litem must participate in any settlement hearing to determine whether the
settlement is in the party’s best interest. Id. Aside from that, a guardian ad litem
“must not participate in discovery, trial, or any other part of the litigation.” Id.
8
In this mandamus proceeding, there are no valid bases on which to appoint a
guardian ad litem and, equally important, there are no existing duties or functions
for the guardian ad litem to perform (even if appointed). The Camp contends that
there are two separate factual grounds on which Johnny Doe and his parents have an
adverse interest which required the appointment of a guardian ad litem, namely (1)
Johnny Doe’s parents have “encourage[ed] and facilitated media attention for the
case,” and (2) Johnny Doe’s parents have “declin[ed] settlement offers in pursuit of
non-monetary goals.” Mandamus Brief at 29. Neither of these two grounds
constitutes an adverse interest between Johnny Doe and his parents.
First, Johnny Doe’s parents have not declined settlement offers in pursuit of
non-monetary goals. Instead, Johnny Doe himself has declined settlement offers in
pursuit of a signed, written, public letter of allocution from the Camp because this
incredibly-meaningful, non-monetary goal ensures that the Camp is required to cure
the damages caused by its own prior misrepresentations regarding Johnny Doe’s
character, honesty, and sexual abuse. Hearing Transcript at 25; Exhibit B to Post-
Hearing Submission of Evidence. Nothing aside from the Camp’s recantation of its
prior misrepresentations and full admission of wrongdoing can adequately
compensate for the Camp’s wrongful acts. Accordingly, this purported conflict is
not an actual conflict between Johnny Doe and his parents, but instead a joint effort
9
between Johnny Doe, his parents, and his attorneys to obtain meaningful, desired
relief on Johnny Doe’s behalf.
More so, Johnny Doe’s own treating psychologist has testified that his parents
have not pushed or coerced Johnny Doe into taking any litigation action. The
treating psychologist’s testimony is highly relevant and critically important to this
mandamus proceeding because her testimony flatly and overwhelmingly rebuts the
Camp’s primary contention that Johnny Doe’s parents are essentially forcing him
into an unwanted trial.
Megan Mooney, Ph.D. is a clinical psychologist employed as the Staff
Psychologist Supervisor of the Trauma Clinic at The DePelchin Children’s Center.
Mooney Depo at 4:18–5:16. Dr. Mooney has been actively treating Johnny Doe as
a consequence of his sexual abuse since July 2012. Id. at 9:5–9:9.
In September 2014, the Camp deposed Dr. Mooney. During her deposition,
Dr. Mooney offered the following definitive testimony:
Q. Now, in your experience with the [Doe] family, have you felt, either
in whole or in part, that—that [Johnny Doe’s] mom and dad have
pushed him into a lawsuit and have pushed him into doing something
that he doesn’t want to do or that he’s not comfortable with?
A. No.
Q. Okay. Well, elaborate a little bit further on that. Because you’ve
got some questions that—that may or may not have implied that. So, I
want to clarify it for the judge and jury so that—that there’s no question
marks at trial.
10
A. From the get—beginning, [Johnny Doe’s] been very clear with me
that one of his main reasons for speaking out about his abuse is to
protect other children; and so, his view of the legal things tied to that
are in his hopes to protect other children from being abused or
[h]armed.
Q. Okay.
A. So, he very much, you know, is—is all for anything that is going
to make that happen.
Mooney Depo at 78:14–79:8. Dr. Mooney’s testimony demonstrates that Johnny
Doe’s parents have not pushed him into anything, and that Johnny Doe is personally
committed to going to trial if that is necessary to cure the Camp’s prior public
misrepresentations. The Camp’s arguments to the contrary should be rejected as
merely a self-serving attempt by the Camp to avoid public accountability.
In addition, Johnny Doe has offered his own viewpoints on the matter. See
Exhibit B to Post-Hearing Submission of Evidence. In sum, Johnny Doe is “strongly
opposed” to the appointment of a guardian ad litem and contends that his own
attorneys, his own parents, and he himself can adequately protect his own best
interests. Id. Johnny Doe’s own words should carry significant weight, if not being
completely dispositive of the matter.
Nonetheless, the Camp offers four excerpts from Johnny Doe’s medical
records to argue that there is an adverse interest between Johnny Doe and his parents.
These four medical records do not establish any existing adverse interest, sufficient
to support the appointment of a guardian ad litem. All four of the excerpts are
11
multiple years old (September 2011, January 2012, March 2012, and January 2013)
and do not reflect any existing issues. Moreover, three of the four excerpts pre-date
the filing of this civil action (filed May 29, 2012) and, therefore, have no bearing on
this lawsuit. Because these four excerpts simply do not reflect an “existing” adverse
interest between Johnny Doe and his parents, the District Court correctly concluded
that there was no basis to appoint a guardian ad litem. Hearing Transcript at 26.
From a substantive standpoint, the four medical-record excerpts do not create
an adverse interest between Johnny Doe and his parents. Instead, the existence of
these four excerpts merely demonstrates the real-life ups-and-downs commonplace
for victims of child sexual abuse. For example, in her January 3, 2013 medical note,
Dr. Mooney reports that, after completing his December 2012 deposition in this civil
action, Johnny Doe “expressed feeling ‘great’ and as if a weight had been lifted from
his shoulders,” “was in a very positive mood,” “has a great outlook on the situation
and demonstrates resiliency,” and “discussed his wish to do things now to help other
children.” See Megan A. Mooney, Ph.D. Medical-Record Excerpt (January 3, 2013),
Appendix to Response, Tab H. Yet, in her next medical note dated January 10, 2013,
Dr. Mooney reports that Johnny Doe is “frustrated” by his “lack of control” over the
litigation process. Megan A. Mooney, Ph.D. Medical-Record Excerpt (January 10,
2013), Appendix to Mandamus, Tab C.
12
The broad variations reflected in Johnny Doe’s mood and affect during these
back-to-back visits are consistent and common among victims of child sexual abuse.
Mooney Depo at 76:13–78:13. As Dr. Mooney explained during her deposition,
victims of child sexual abuse generally exhibit symptoms of irritability,
combativeness, and defiance. Id. These symptoms, in turn, are frequently triggered
and exacerbated by stressful events in the victim’s life, such as involvement in
lawsuits. Id. Johnny Doe, as the victim of sexual abuse, has endured similar stressful
feelings throughout his course of medical treatment and during the lifespan of this
civil action. Id.
That being said, Dr. Mooney clearly testified that a victim’s decision on
whether to pursue legal relief or to testify about their sexual trauma is a decision that
should be made “on a case-by-case, client-by-client basis.” Id. In this situation,
Johnny Doe, his parents, his medical providers, and his attorneys have worked
together over the course of years to determine which litigation strategies are in
Johnny Doe’s best interests. Hearing Transcript at 25; Exhibit B to Post-Hearing
Submission of Evidence. The Camp simply disregards this truth because it is
inconvenient to the Camp’s position.
The fact that Johnny Doe expressed some frustration about the legal process
multiple years ago does not signify any adverse interest between Johnny Doe and
his parents. Rather, this fact reflects that Johnny Doe has suffered and continues to
13
suffer through the normal, expected symptoms associated with child sexual abuse.
Even more so, the fact that Johnny Doe, his parents (with existing parental duties),
his medical providers (with existing professional duties), and his attorneys (with
existing professional duties) have discussed these issues amongst themselves on
numerous occasions reflects that Johnny Doe’s parents have not adopted any interest
adverse to Johnny Doe, but are committed to protecting Johnny Doe’s best interests.
Accordingly, it seems both unnecessary and hypocritical for the Camp and its
counsel—neither of which have any duty to act in Johnny Doe’s best interest, and
both of which have publicly blamed the Doe Family—to claim that they are now
concerned about his best interests. Hearing Transcript at 14–15.
Second, the Camp suggests that the Doe Family’s cooperation with the
publication of the article “Parents Never Dreamed Sending Their Kid to Camp La
Junta Would Turn into a Sexual Abuse Nightmare,” by The Houston Press in
February 2014 demonstrates that Johnny Doe’s parents are not adequately protecting
Johnny Doe’s desire for anonymity. The Camp’s suggestion is again entirely wrong.
At the outset, Johnny Doe knew about and consented to the publication of The
Houston Press article because it provided him with a public outlet as an attempted
means to correct the years’ worth of prior public misrepresentations made by the
Camp, and because it furthered his goals of preventing future acts of child sexual
abuse through public awareness. The article did not reveal the names or the identities
14
of the Doe Family. And, Dr. Mooney also was aware of the article, and had
concluded that the publication of the article did not have any negative impact on
Johnny Doe whatsoever. Mooney Depo at 81:11–83:12. Accordingly, the
publication of The Houston Press article did not create and does not reflect any
adverse interest between Johnny Doe and his parents.
Third, it is altogether unclear what benefit or role a guardian ad litem would
serve in this matter. The parties have already mediated this matter twice: in August
2013 and in September 2014. Both mediations were unsuccessful. In addition, there
are no current mediations scheduled, nor has any future mediation been requested,
ahead of the August 3, 2015 trial date. Accordingly, even if a guardian ad litem were
appointed, she would have nothing to do at this time.
More so, regardless of a future mediation or not, a guardian ad litem still could
not effectuate any relief in this matter. For example, if a guardian ad litem were
appointed and that guardian ad litem concluded in her personal opinion that Johnny
Doe’s non-monetary demand was unreasonable, neither the guardian ad litem nor
the District Court could force Johnny Doe to forego his own litigation objectives.
Hearing Transcript at 9, 23. On the other hand, if the guardian ad litem concluded
that Johnny Doe’s non-monetary demand was incredibly reasonable and should be
accepted by a reasonable defendant, neither the guardian ad litem nor the District
Court could force the Camp to accept the demand. Accordingly, there is no
15
substantive relief to be gained from the appointment of a guardian ad litem in this
matter.
B. THE CAMP WILL NOT SUFFER IRREPARABLE HARM ABSENT
MANDAMUS
In order to be entitled to mandamus relief, the realtor must show that it has no
adequate remedy on appeal. In re Prudential Ins. Co. of Am., 148 S.W.3d 124, 135–
36 (Tex. 2004). This rule exists to ensure appellate courts do not “embroil
themselves unnecessarily in incidental pre-trial rulings of the trial courts” such that
mandamus “would soon cease to be an extraordinary writ.” Packer, 827 S.W.2d at
842, quoting Braden v. Downey, 811 S.W.2d 922, 928 (Tex. 1991).
Here, the Camp has not alleged, let alone established, that “it” lacks any
remedy on appeal. This is so because the Camp is not seeking to protect or to enforce
any of its own rights or interests. Instead, the Camp is solely attempting to enforce
Johnny Doe’s interests. Mandamus Brief at 3 (“In light of the importance of the
issues, and the fundamental rights of the minor Real Party in Interest at stake, this
appeal is deserving of an oral argument.”), 28 (“The irreparable harm to be suffered
in this case would be visited on Johnny Doe.”) Because the Camp has not alleged
that it lacks an adequate remedy on appeal, and instead has only alleged that Johnny
Doe lacks an adequate remedy on appeal, the Camp has not established the second
prong of its mandamus burden.
16
Put simply, the Camp, as realtor in this mandamus proceeding, was required
to allege and to establish that it—not Johnny Doe—lacked an adequate remedy on
appeal. Having failed to do so, the Camp failed to meet their burden.
C. THE CAMP LACKS STANDING TO BRING THIS MANDAMUS
PROCEEDING
To have standing to bring a mandamus proceeding, the realtor must have a
justiciable interest in the underlying controversy. See In re Houston Chronicle Pub.
Co., 64 S.W.3d 103, 106 (Tex. App.—Hous. [14th Dist.] 2001); see also Terrazas
v. Ramirez, 829 S.W.2d 712, 722 (Tex. 1991). “Standing consists of some interest
peculiar to the person individually and not as a member of the general public.” Hunt
v. Bass, 664 S.W.2d 323, 324 (Tex. 1984). Thus, to have standing to bring a
mandamus proceeding, the realtor must establish that it has suffered a real injury
that will actually be resolved by the mandamus proceeding. See, e.g., Sneed v.
Webre, ___ S.W.3d ___, 2015 WL 3451653 at *7 (Tex. May 29, 2015) (identifying
the general test for “standing” in Texas).
In this matter, the Camp lacks standing to bring a mandamus proceeding. The
Camp acknowledges that it has not suffered any individualized injury. In sum, the
Camp’s rights simply have not been impacted by the District Court’s decision.
Instead, only Johnny Doe’s and his parents’ rights have been impacted by the District
Court’s decision. In substance, the Camp is attempting to act on behalf of Johnny
Doe, even though the Camp does not act in any representational capacity for him
17
and even though Johnny Doe is opposed to the relief sought. This posture simply
does not afford the Camp standing to bring a mandamus proceeding on behalf of
Johnny Doe.
D. COUNSEL’S STATEMENTS AT THE ORAL HEARING ARE ADMISSIBLE
EVIDENCE
In its mandamus brief, the Camp argues that the statements made by counsel
for Johnny Doe during the oral hearing are not admissible evidence. Mandamus
Brief at 22. While it is generally true that statements made by attorneys must be
made under oath to be considered as evidence, the Texas Supreme Court recognized
an exception to that general rule in Banda v. Garcia, 955 S.W.2d 270, 272 (Tex.
1997). There, the Texas Supreme Court held that an opponent of the testimony
waives the oath objection by failing to object when it knows or should know that an
objection is necessary. Id.; see also Keith v. Keith, 221 S.W.3d 156, 169 (Tex.
App.—Hous. [1st Dist.] 2006).
During the oral hearing, counsel for Johnny Doe made a number of factual
assertions on the record to rebut evidence offered by the Camp. Hearing Transcript
at 25–26. Counsel for the Camp did not object to any of these factual assertions, and
counsel for the Camp knew or should have known of the need to object to these
factual assertions because the assertions were being offered to rebut the factual
record being made by the Camp. Because the Camp failed to object to the oath
18
requirement during the oral hearing, the factual assertions made by counsel for
Johnny Doe are considered evidence for purposes of this mandamus proceeding.
CONCLUSION
For the foregoing reasons, the Doe Family respectfully requests that the
Appellate Court deny the Camp’s Petition for Writ of Mandamus.
Respectfully submitted,
RUSTY HARDIN & ASSOCIATES, LLP
/s/ Bob Wynne
Rusty Hardin
rhardin@rustyhardin.com
State Bar No. 08972800
Andy Drumheller
adrumheller@rustyhardin.com
State Bar No. 00793642
Robert P. Wynne
bwynne@rustyhardin.com
State Bar No. 24060861
1401 McKinney, Suite 2250
Houston, Texas 77010-4035
(713) 652-9000
(713) 652-9800 (Facsimile)
ATTORNEYS FOR PLAINTIFFS/
Real Parties in Interest Johnny Doe,
Jane Doe, and John Doe
19
CERTIFICATE OF COMPLIANCE
This is to certify that the Response to petition for Writ of Mandamus is 4,654
words in accordance with Texas Rule of Appellate Procedure 9.4(i)(2)(B).
/s/ Bob Wynne
_____________________________
Bob Wynne
CERTIFICATE OF SERVICE
I hereby certify that the foregoing instrument was served on all counsel of
record on May 27, 2015, pursuant to Texas Rules of Appellate Procedure.
/s/ Bob Wynne
_____________________________
Bob Wynne
20
APPENDIX
Tab No. Description
A Motion for Appointment of Guardian Ad Litem
B Joint Motion to Transfer Venue, and Subject Thereto Original
Answers, Special Exceptions, and Counterclaims to Plaintiffs’ Second
Amended Petition With Requests for Disclosures
C Motion to Designate Responsible Third Party
D Motion to Strike and Objection to Motion to Designate Responsible
Third Party
E Deposition of Megan Mooney, Ph.D. (filed in camera)
F Post-Hearing Submission of Evidence (Ex. B filed in camera)
G Objection to and Motion to Strike Post-Hearing Submission of
Evidence
H Megan A. Mooney, Ph.D. Medical-Record Excerpt (Jan. 3, 2013)
(filed in camera)
21
TAB A
CAUSE NO. 2012 - 31192
JOHNNY DOE, PLAINTIFF by and § IN THE DISTRICT COURT OF
Through his Parents, JOHN DOE §
and JANE DOE §
Plaintiff, §
§
V. § HARRIS COUNTY, TEXAS
§
CAMP LAJUNTA 1928, LP., and §
BLAKE SMITH §
Defendants. § 333rd JUDICIAL DISTRICT
FIRST AMENDED MOTION FOR APPOINTMENT OF GUARDIAN AD LITEM
Defendants Camp LaJunta 1928 L.P., Blake Smith, Camp LaJunta, Inc., and CLJ
Management Systems, L.L.C. (hereinafter collectively sometimes referred to as “Defendants”),
file this First Amended Motion for Appointment of Guardian Ad Litem:
I. INTRODUCTION1
This suit for alleged damages is bought by John Doe and Jane Doe (sometimes hereafter
“the Parents”), as next friends of Johnny Doe, their seventeen (17) year old son. Plaintiff alleges
he was sexually molested by a former employee of one of the Defendants while attending
summer camp in 2009. Plaintiff also asserts defamation claims against certain Defendants.
Discovery has revealed that the Parents’ interests in this litigation conflict in certain important
respects with the interests of Plaintiff Johnny Doe, and that his Parents’ own actions in
connection with this event and this litigation have and are continuing to harm Johnny Doe. In
light of the overwhelming and uncontroverted evidence demonstrating the Parents’ damaging
1
Because Plaintiffs brought this action as a “John Doe” proceeding to protect the identity of the Minor
Plaintiff, and due to the sensitive and confidential nature of the mental health and treatment records, and in light of
the Agreed Protective Order, the exhibits which support this motion will not be filed with the motion but will be
submitted to the Court for in camera inspection, and will be made the subject of a Motion to Seal.
4845-9635-6387.1 1
actions and conflicting interests with those of Johnny Doe, Defendants seek, in the best interests
of seventeen (17) year old Johnny Doe, the Appointment of a Guardian Ad Litem to represent
the interests of Johnny Doe henceforth in this matter, pursuant to Texas Rule of Civil Procedure
173.2(a)(1).
II. ARGUMENT AND AUTHORITIES
This suit was brought by John and Jane Doe, his parents, as next friends of the minor,
Johnny Doe. Texas Rule of Civil Procedure 173.2 provides that a court must appoint a Guardian
Ad Litem for a party represented by a next friend or guardian if the next friend or guardian
appears to the Court to have an interest adverse to the party. Tex.R.Civ.P. 173.2. The Court may
appoint the Guardian Ad Litem on the motion of any party or on its own initiative. Tex.R.Civ.P.
173.3. The Guardian Ad Litem’s role is to assist in protecting the interests of the child when a
conflict of interest arises between the child and the child’s guardian or next friend. Land Rover
U.K. v. Hinojosa, 210 S.W.3d 604, 607 (Tex. 2006).
There is overwhelming evidence in this case to establish significant, adverse and
conflicting interests between seventeen (17) year old Johnny Doe and his Parents to warrant the
appointment of a Guardian Ad Litem. Johnny Doe has repeatedly expressed his wish to “put this
matter [the alleged abuse and this lawsuit] behind him,” and he has reported to his mental
healthcare providers that his Parents, most often his mother in particular, have disregarded his
desire to “have more control” over his lawsuit and settlement discussions.2 The evidence in this
2
Exhibit A, Depelchin Children’s Center records of Megan Mooney, Ph.D, reported on:
January 10, 2013
Exhibit B, Michelle M. Forrester, Ph.D./Diane Barghi Therapy Note records reported on:
September 12, 2011,January 3, 2012
March 22, 2012, 2:00 p.m.
4845-9635-6387.1 2
case goes far beyond a simple desire by Johnny Doe to put this matter behind him. Rather it
demonstrates some of the conflicting interests between Johnny Doe and his Parents regarding
this litigation, and some of the harm his Parents, though presumably acting with the best of
intentions, have nevertheless regrettably caused Johnny Doe to suffer in the past, in the present
and potentially again in the future. This Court has an opportunity to hopefully prevent such
future harm through the appointment of a Guardian Ad Litem.
A. Background
One of Johnny Doe’s therapists, Dr. Megan Mooney, is a staff psychologist at DePelchin
Children’s Center in Houston.3 She first met Johnny Doe in July of 2012.4 Her goal as clinical
psychologist is to work with patients to address problems and help them improve their lives.5
Dr. Mooney diagnosed Johnny Doe as suffering from post-traumatic stress disorder.6
Mooney found the sources of Johnny Doe’s post-traumatic stress disorder (“PTSD”) were: (1)
the abuse he suffered at the camp; (2) [the abuser’s criminal] trial; and (3) Johnny Doe having to
reenact the sexual abuse as part of the legal proceedings. Mooney concluded the criminal trial
was not helpful for Johnny Doe.7
Fortunately, Dr. Mooney’s treatment was so successful, that as a result of her therapeutic
treatment of Johnny Doe, Dr. Mooney was able to find that as of April 18, 2013, Johnny Doe
was symptom free of PTSD.8 Unfortunately, his problems re-surfaced after a Houston Press
3
Mooney Deposition, P. 4, L. 18-23
4
Mooney Deposition, P. 9, l. 7- 9.
5
Mooney Deposition, P. 5, L. 21-25 - P. 6, L 1-15
6
Mooney Deposition, P. 12, L. 11-17
7
Mooney Deposition, P. 13, L. 18-25, P. 14, L. 1-2.
8
Mooney Deposition, P. 39, L. 18-22; P. 60, L. 5.
4845-9635-6387.1 3
newspaper article, written with the assistance of Jane Doe and Dr. Mooney, was published on
February 20, 2014,9 as will be discussed below.
B. Harmful and Conflicting Actions of Johnny Doe’s Mother
1. Litigation vs. Settlement
On August 15, 2011, one of Johnny Doe’s treating mental health care providers, Diane
Barghi suggested to Jane Doe that she should move past “everything” and that Johnny Doe could
not move past this if his mother would not move past it.10 Barghi also stated it was hard for
Johnny Doe to move on because his mom Jane Doe would not stop talking about it.11 Again, on
September 12, 2011, Johnny Doe related to Barghi, that his mom Jane Doe “is talking about [his]
case constantly, and he doesn’t want to think about it anymore.” Johnny Doe explained that he
“wanted to move on and was not going to let [the abuse] ruin his life.”12 Johnny Doe discussed
with Dr. Michelle Forrester, another of his therapists, the fact that his mother Jane Doe talks
“about it [the incident and the litigation] constantly, and he doesn’t want to think about it
anymore.”13 Further, Johnny’s mother Jane Doe has admitted to being untruthful and misleading
to Johnny Doe. She admitted in her deposition that Johnny Doe “doesn’t realize you can get
money from [a lawsuit], but feels he is helping children by trying to prevent this from happening
again.”14 As with the criminal case, this civil case if tried, particularly because it will be tried in
public, will be no less traumatic for Johnny Doe than the criminal trial of his attacker was, where
9
Mooney Deposition, P. 58, L. 22-25, P. 59, L. 1-21.
10
Barghi Deposition, P. 111, L. 20-23.
11
Barghi Deposition, P. 111, L 13-19.
12
Barghi Deposition, P. 113, L. 12-22.
13
Exhibit B, Michelle M. Forrester, Ph.D./Diane Barghi Therapy Note records reported on:
September 12, 2011
14
Jane Doe’s Deposition, P. 188-189, L. 8 – 21.
4845-9635-6387.1 4
at least his identity was shielded. It’s safe to assume that this case, if tried, will draw widespread
news media attention.
As stated, Johnny Doe, who was symptom-free on April 13, 2013, saw problems re-
surface after a Houston Press article was published on February 20, 2014. Johnny Doe’s mother,
despite an Agreed Protective Order prohibiting parties and their attorneys from disclosing
confidential information regarding the case, entered by Judge Halbach in August 2012, agreed
to be interviewed and to provide voluminous documents for an article to be published in the
Houston Press newspaper concerning Johnny Doe’s abuse.15
2. Mr. and Mrs. Doe - Cause of Johnny Doe’s Alleged Defamation
Though his identity, on information and belief, had not been previously made public, in
2012, Johnny Doe’s own Parents told their friends the “Jones” that Johnny Doe was the child
involved in the camp abuse incident in question.16 Other witnesses corroborated this startling
revelation by the Parents. According to another family friend, S. A.17, Johnny Doe’s parents were
the ones who revealed the identity of Johnny Doe to the public. S.A. testified that he found out
that Johnny Doe was revealed as the victim by his Parents, after talking with the “Jones.”
Shortly thereafter Johnny Doe’s father called S.A. and repeated the story to S.A.18
15
Mooney Deposition, P. 52, L. 4-25; P. 51, L. 1; P. 57, L 3-24
16
John Doe’s Deposition, P 83, L. 1 – P. 84, L24.
17
“S.A.” is being used due to the confidential nature of the proceedings and protective order in place.
18
S.A. Deposition, P. 49, L 23 – P. 51, L. 8
4845-9635-6387.1 5
S.W.19 was Johnny Doe’s principal at H.S.20 Middle School. Johnny started 6th grade at
H.S. in 2010.21 S.W. was initially unaware that Johnny was undergoing counseling, but was
informed by his Parents John and Jane Doe, prior to the start of the school year, of Johnny’s
“issues.”22 This included reports of joking comments made by other students at Johnny Doe’s
former school regarding the camp incident, though those students didn’t know Johnny Doe was
the camper involved.
The people “in the community” at H.S. were unaware of Johnny Doe’s [abuse history],
prior to his enrolling at H.S.23 S.W. had a discussion with Johnny Doe after her conversation
with his Parents to let Johnny know she was aware of the abuse. S.W. said she told Johnny he
could see her at any time he needed to, and she also informed his teachers he could do so.24 S.W.
would also tell certain teachers about Johnny Doe’s “special circumstances” prior to Johnny
participating in class trips. S.W. received permission to do so from Johnny Doe’s parents.25
Johnny Doe expressed considerable frustration to his mental health care practioners
concerning how much of his personal business, including his history of abuse at summer camp,
his mother Jane Doe had shared with other people, without Johnny Doe’s permission.26 Johnny
19
S.W. is used due to the confidential nature of the proceedings and protective order.
20
H.S. is used due to the confidential nature of the proceedings and protective order.
21
S.W. Deposition, P. 10, L. 3 - 6
22
S.W. Deposition, P. 12, L. 4 – P. 13, L. 6
23
S.W. Deposition, P. 13, L. 23 – P. 14, L. 6
24
S.W. Deposition, P. 16, L. 20 – P. 17, L. 3
25
S.W. Deposition, P. 16, L. 5 – P. 18, L. 3
26
Mooney Deposition, P. 18, L. 12-19
4845-9635-6387.1 6
Doe’s mother’s sharing his private information with others caused him agitation and stress.27
Mooney tried to work through the problems between Johnny Doe and his Mom caused by her
sharing his personal information with others without his permission.28 In an October 18, 2012
progress note, in another significant admission, Johnny Doe’s mother validated Johnny’s
concerns about her revealing his private information without his permission, and said she would
“try to be more mindful of this in the future.”29
In an October 23, 2012 progress note, Dr. Mooney noted Johnny Doe was “pissed off”
because his mother had lied to him and tried to trick him into something that was not true. This
conflict was in relation to his session with Dr. Mooney from the prior week noted above,
[October 18, 2012], and Johnny Doe’s overall [lack of] trust in his mother.30
Despite an Agreed Protective Order of August, 2012, entered by Judge Halbach
prohibiting parties and their attorneys from disclosing confidential information regarding the
case, both Dr. Mooney and Jane Doe, Johnny Doe’s mother agreed to be interviewed for a
February 20, 2014 article in the Houston Press newspaper concerning Johnny Doe’s abuse.31
Johnny Doe’s mother Jane Doe also furnished substantial documents to the Houston Press
concerning Johnny Doe’s abuse in connection with that article, all in violation of Judge
Halbach’s August 2012 Order.32 Jane Doe made clear to the Houston Press author that it has
27
Mooney Deposition, P. 19, L. 9-17
28
Mooney Deposition, P. 20, L. 1-12
29
Mooney Deposition, P. 20, L. 22-25; P. 21, L 1-11
30
Mooney Deposition, P. 22, L. 10-25; P. 23, L 1-3
31
Mooney Deposition, P. 52 L. 16 – P. 53, L. 4.
32
Mooney Deposition, P. 52, L. 4-25; P. 51, L. 1; P. 57, L 3-24
4845-9635-6387.1 7
been her mission to “make sure justice was served” and to “make things right.”33 The reporter
noted in the article that Jane Doe “put together a binder six inches thick, carefully organizing it
with her notes, photos, printouts and everything else…. [which was made available to the
reporter.]” Jane Doe’s participation in the interview and publication of this article clearly
illustrates conflicting interests between his Parents and Johnny Doe. While potentially offering
the Parents some level of “vindication” in telling their story in the way in which they, rightly or
wrongly, perceived things to be,34 the news story clearly served to renew interest in the event and
reignite discussions and rumors being spread throughout the community, which was certainly not
in the best interests of Johnny Doe. This is further supported by the testimony of Johnny Doe’s
therapist, Dr. Megan Mooney, who admitted in her deposition that Johnny Doe’s mother’s
“sharing” of his private story with a newspaper “could trigger problems in child who was
previously asymptomatic of PTSD.”35
C. Johnny Doe Wants Some Control Over His Lawsuit
Seventeen year old Johnny Doe has repeatedly expressed frustration over his lack of
control over his own lawsuit. Johnny Doe says he feels very strongly about needing a sense of
control over his lawsuit.36 Johnny Doe told his health care providers he is frustrated by his lack
of control over settlement discussions in his civil case.37 Johnny Doe told his therapist that “his
33
Exhibit C, Houston Press Article, February 19, 2014
34
Undersigned defense counsel hereby advises the Court, that when he was contacted by the reporter for
the Houston Press, he advised the reporter that pursuant to the provisions of the Agreed Protective Order he could
not comment. The article as published reflects this response.
35
Mooney Deposition, P. 60, L. 5-13; L. 15 – 24.
36
Mooney Deposition, P. 32, L. 4-9
37
Mooney Deposition, P. 31, L. 4-19
4845-9635-6387.1 8
Dad was basically making him testify.”38 In March 2012, Johnny Doe reported to his therapist
that he believed his Parents were hiding things from him related to the case, and further that his
mother was lying to him about it.39 Johnny Doe further expressed his displeasure with the extent
of his mother’s involvement in the legal process.40 These conflicting and adverse positions
between seventeen (17) year old Johnny Doe and his Parents are further evidenced by an entry in
treating psychologist Dr. Mooney’s records, dated January 10, 2013, wherein Johnny Doe
“reported feeling frustrated by lack of control he has in deciding whether to accept any proposed
settlements in [his] civil case.”41
III.
The desire of Johnny Doe’s Parents to proceed with this litigation directly conflicts with
Johnny Doe’s wishes. Regrettably, his Parents’ own actions have caused harm to their son,
Johnny Doe. It’s enlightening to note that while Jane Doe admitted Johnny had told her that he
had “moved on,” nevertheless she would not do so until the perpetrator was in jail.42 Yet, even
after the criminal trial was over (May 2011), and the perpetrator had been imprisoned (October
2011), his Parents did not honor Johnny Doe’s wishes regarding this litigation. Clearly, as has
been shown by compelling testimony from three (3) of his own mental health care providers,
38
Exhibit B, Michelle M. Forrester, Ph.D./Diane Barghi Therapy Note records reported on:
February 28, 2011
39
Exhibit B, Michelle M. Forrester, Ph.D./Diane Barghi Therapy Note records reported on:
March 22, 2012
40
Exhibit A, Mooney records reported on:
November 20, 2012
November 26, 2012
41
Exhibit A, Mooney records reported on:
January 10, 2013
42
Exhibit B, Michelle M. Forrester, Ph.D./Diane Barghi Therapy Note records reported on:
August 15, 2011
4845-9635-6387.1 9
Barghi, Dr. Mooney and Dr. Forrester, and various admissions of his own mother, Johnny Doe’s
interests are in conflict with those of his Parents, and Johnny Doe should be represented at this
stage and henceforth, by a Guardian Ad Litem.
This litigation is clearly an emotionally charged matter for John Doe and Jane Doe who
have made clear that they will not rest until “justice is done” at least their version of “justice,”
regardless of the consequences to their son. As such, no matter how well-intentioned John Doe
and Jane Doe may be, their own emotional and personal interests have been unquestionably
shown to have clouded their opinions with respect to what is in the best interest of their
seventeen (17) year old son Johnny Doe. While most respectively conceding his Parents’ belief
they are acting in Johnny Doe’s best interest, an impartial Guardian Ad Litem, considering the
Parents’ views and Johnny Doe’s wishes, might reach a different conclusion.
The conflicting and adverse positions his Parents have taken relative to Johnny Doe’s
wishes and desires, is further evidenced in connection with Johnny Doe’s defamation claims.
Johnny Doe has alleged in this suit, brought by his Parents as his next friends, that Defendant
Blake Smith defamed Johnny Doe by orally stating that Johnny had “emotional problems,” was
“a problem child,” was “lying about the allegations,” and that Johnny Doe’s “family was
litigious.”43 Despite these allegations, there has been no evidence that Blake Smith ever divulged
the identity of Johnny Doe and/or his family. Publication is a necessary element of a defamation
claim. Incredibly, the uncontested evidence has established that Johnny Doe’s own Parents were
the ones who made Johnny Doe’s identity as the victim of the alleged abuse known to family
43
See Plaintiff’s Second Amended Petition, Paragraphs 38 and 43.
4845-9635-6387.1 10
friends, members of his community, and school administrators.44 As such, any injury to Johnny
Doe’s reputation (which is denied) resulted from the actions of his Parents – the same people
representing Johnny Doe as his next friends in this litigation!
It is axiomatic that a public trial of this case will visit substantial and negative
consequences on Johnny Doe. While his Parents claim they are not seeking damages for
themselves, the pursuit of this litigation has been conclusively shown, through the sworn
testimony of Mrs. Doe herself, to be driven by her own personal and emotional needs, which
have been shown to conflict with her son’s wishes and needs. As such, John Doe and Jane Doe
are not in the best position to impartially assess the true costs, benefits and potential negative
consequences to Johnny Doe in making decisions on whether to try this case to conclusion or
resolve it via settlement. While the evidence makes clear that Johnny Doe and his Parents have
different opinions with respect to the litigation, Johnny Doe is the only one without a voice, and
absent some protection being afforded by this Court via the appointment of a Guardian Ad
Litem, seventeen (17) year old Johnny Doe is at the mercy of his Parents and their interests
which conflict with his.
Accordingly, the appointment of a Guardian Ad Litem to serve as an impartial
representative of and advisor to Johnny Doe, on the Court’s behalf, with respect to further
handling of this litigation is in the best interest of Johnny Doe, the business of the Court, and
justice, and is reasonable and appropriate in this case.
Clearly, the appointment of a Guardian would not prejudice Johnny Doe. No conflicts or
potential conflicts between the interests of Johnny Doe and his Parents would be created by
44
See quotes from Deposition of Susan S.W. above.
4845-9635-6387.1 11
appointing a Guardian Ad Litem, and no adverse impact to Johnny Doe by having the assistance
of a Guardian Ad Litem would occur. Johnny Doe’s rights would be protected by a clearly
unbiased person able to set aside emotions, something understandably very difficult for a parent
to do in a case involving one’s own child. The Parents’ thoughts of revenge, punishment and
similar matters can negatively impact the Parents’ ability to impartially analyze relevant matters
pertinent to the litigation in the best interests of Johnny Doe. The Parents’ inability to think
impartially could subject Johnny Doe to a public trial with the attendant stress, anxiety and
potential emotional harm such publicity and public disclosure of his identity will cause just as he
is entering his senior year of high school.
By analogy, Judges and counsel must voluntarily recuse themselves from matters
pursuant to the applicable code of ethics where the Judge or counsel cannot be completely
impartial. Both are ethically bound to recuse themselves in the best interest of the client to avoid
even the appearance of impropriety. Based on the record cited herein there is substantial
evidence of conflicts, or at minimum, appearances of conflicts between Parents and Johnny Doe
concerning the conduct of this litigation. A Guardian Ad Litem could help Johnny Doe evaluate
his options based on what is best for him personally, as opposed to the differing wishes of his
Parents, who regardless of how loving and supportive they no doubt are, can’t easily be impartial
in this matter.
Defendants do not bring this motion to criticize Johnny Doe’s Parents. Johnny Doe’s
Parents are to be praised for their courage, tenacity and love for their child. Rather, this Motion
is brought on behalf of the minor Plaintiff, so that the concerns he has repeatedly raised with his
mental health care providers regarding his Parents’ actions which are adverse to his own
interests, can be addressed by a Guardian Ad Litem, before any further harm is done.
4845-9635-6387.1 12
IV.
Therefore, Defendants would most respectfully show, based on the abundance of
evidence in the record, that it is in the best interest and for the protection of Johnny Doe, that a
Guardian Ad Litem be appointed by this Court for the purpose of providing full and adequate
representation of the interests of Johnny Doe through conclusion of this litigation, including
participation in any and all settlement discussions and attendant decision-making, and all
necessary monitoring and assisting in the litigation of this cause, acting at all times with the best
interest of Johnny Doe in mind, and reporting to the Court on same. Accordingly, Defendants
respectfully request that this Court appoint a Guardian Ad Litem for the purposes stated.
WHEREFORE, PREMISES CONSIDERED, Defendants request that for the reasons
stated herein, a Guardian Ad Litem be appointed by this Honorable Court to represent the
interests of Johnny Doe, a minor, in all respects.
Respectfully submitted,
LEWIS BRISBOIS BISGAARD & SMITH, LLP
_/s/ Kent M. Adams____________________________
KENT M. ADAMS
State Bar Number 00869200
Kent.adams@lewisbrisbois.com
SARAH M. DAVIS
State Bar Number 24031998
Sarah.davis@lewisbrisbois.com
KRISTIE E. JOHNSON
State Bar Number 24038382
Kristie.johnson@lewisbrisbois.com
24 East Greenway Plaza, Suite 1400
Houston, Texas 77046
(713) 659-6767 Telephone
(713) 759-6830 Facsimile
ATTORNEYS FOR DEFENDANTS
CAMP LAJUNTA 1928, LP, BLAKE SMITH,
CLJ MANAGEMENT SYSTEMS, LLC AND
CAMP LAJUNTA, INC.
4845-9635-6387.1 13
A NOTE CONCERNING EXHIBITS
Exhibits referenced herein will be submitted to the Court Only, for In Camera review
only and will be subject to a Motion to Seal.
CERTIFICATE OF CONFERENCE
I HEREBY CERTIFY that the subject of this motion has been discussed with Plaintiffs’
counsel to determine if the Motion can be filed as agreed. Plaintiffs oppose the filing of this
motion.
_/s/ Kent M. Adams____________________________
KENT M. ADAMS
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a true and correct copy of the above and foregoing Motion to
Appoint Guardian Ad Litem has been served on the following by electronic service on this
7th day of May, 2015.
Rusty Hardin & Associates, LLP
Rusty Hardin
Andy Drumheller
Robert P. Wynne
5 Houston Center
1401 McKinney, Suite 2250
Houston, Texas 77010
_/s/ Kent M. Adams____________________________
KENT M. ADAMS
4845-9635-6387.1 14
CAUSE NO. 2012 - 31192
JOHNNY DOE, PLAINTIFF by and § IN THE DISTRICT COURT OF
Through his Parents, JOHN DOE §
and JANE DOE §
Plaintiff, §
§
V. § HARRIS COUNTY, TEXAS
§
CAMP LAJUNTA 1928, LP., and §
BLAKE SMITH §
Defendants. § 333rd JUDICIAL DISTRICT
ORDER APPOINTING GUARDIAN AD LITEM
On this day, the Court considered the Motion to Appoint Guardian Ad Litem filed by
Defendants Camp LaJunta 1928, LP, Blake Smith, Camp LaJunta, Inc. and CLJ Management
Systems, L.L.C., the response, and the arguments of Counsel, and has found the motion to be
meritorious. Accordingly, it is
ORDERED that the Motion to Appoint Guardian Ad Litem be and hereby is,
GRANTED; it is further
ORDERED that __________________________, be and hereby is appointed as
Guardian Ad Litem to represent the interests of Johnny Doe, a minor Plaintiff herein. It is further
ordered that the Guardian Ad Litem will be paid a fee of $ ______, [or an hourly rate of $ ____],
plus reasonable expenses, to be assessed equally between Plaintiffs as a single group, and the
Defendants as a single group.
SIGNED this _____ day of ______________________, 2015.
_____________________________________
JUDGE PRESIDING
4845-9635-6387.1 15
Approved as to Form and Entry Requested:
LEWIS BRISBOIS BISGAARD & SMITH, LP
_/s/ Kent M. Adams____________________________
KENT M. ADAMS
State Bar Number 00869200
Kent.adams@lewisbrisbois.com
SARAH M. DAVIS
State Bar Number 24031998
Sarah.davis@lewisbrisbois.com
KRISTIE E. JOHNSON
State Bar Number 24038382
Kristie.johnson@lewisbrisbois.com
24 East Greenway Plaza, Suite 1400
Houston, Texas 77046
(713) 659-6767 Telephone
(713) 759-6830 Facsimile
ATTORNEYS FOR DEFENDANTS
CAMP LAJUNTA 1928, LP, BLAKE SMITH,
CLJ MANAGEMENT SYSTEMS, LLC, AND
CAMP LAJUNTA, INC.
4845-9635-6387.1 16
TAB B
CAUSE NO. 2012 - 31192
JOHNNY DOE, PLAINTIFF by and § IN THE DISTRICT COURT OF
Through his Parents, JOHN DOE §
and JANE DOE §
Plaintiff, §
§
V. § HARRIS COUNTY, TEXAS
§
CAMP LA JUNTA 1928, LP. and §
BLAKE SMITH §
Defendants. § 333rd JUDICIAL DISTRICT
DEFENDANTS CAMP LAJUNTA, INC., CLJ MANAGEMENT SYSTEMS, L.L.C.,
CAMP LAJUNTA 1928, L.P. AND BLAKE SMITH’S
JOINT MOTION TO TRANSFER VENUE, AND SUBJECT THERETO
ORIGINAL ANSWERS, SPECIAL EXCEPTIONS
AND COUNTERCLAIMS TO PLAINTIFF’S SECOND AMENDED PETITION
WITH REQUESTS FOR DISCLOSURE
COME NOW Defendants CAMP LAJUNTA, INC., CLJ MANAGEMENT SYSTEMS,
L.L.C., CAMP LAJUNTA 1928, L.P. and BLAKE SMITH (collectively “Defendants”) and file
this their Motions to Transfer Venue and Subject Thereto Original Answers, Special Exceptions
and Counterclaims with Requests for Disclosure to Plaintiff’s Second Amended Petition, and in
support thereof would respectfully show as follows:
I.
MOTION TO TRANSFER VENUE
Plaintiffs have asserted that venue is proper in Harris County under Texas Civil Practice
& Remedies Code §15.017 due to a defamation claim alleged against the Defendants.
Defendants submit that the defamation claim has no basis in law or in fact and is simply asserted
in an effort to inappropriately fix venue in Harris County under the mandatory venue provision
of §15.017.
4839-5553-3084.1 1
Pursuant to Texas Rule of Civil Procedure 87(3)(a), Defendants specifically deny the
alleged facts underpinning the Plaintiffs’ defamation claim and any other allegations that venue
is proper in Harris County. Defendants specifically deny that they “published statements through
oral and written communications with third parties asserting as fact that Johnny Doe was
emotionally troubled and lied about the sexual abuse he suffered at Camp LaJunta” as alleged in
Paragraph 43, on page 11 of Plaintiffs’ Second Amended Petition. Defendants also specifically
deny that “all or part of the cause of action accrued” in Harris County, as alleged on page 2 of
Plaintiffs’ Second Amended Petition. Defendants Camp LaJunta 1928 L.P., and Blake Smith
may have “agents and/or representatives who conducted business in Harris County, Texas” as
alleged on page 2 of Plaintiffs’ Second Amended Petition, but none of the “business” is in any
way related to Plaintiffs’ allegations in this case. Defendants Camp LaJunta, Inc. and CLJ
Management Systems, L.L.C., specifically deny that any of its employees have conducted
business in Harris County, Texas. In addition, Plaintiffs John Doe and Jane Doe have abandoned
any individual claims they previously asserted, arising out of alleged libel, slander or defamation.
Because there is no basis in law or in fact to support Plaintiffs’ defamation claim,
Defendants assert that the mandatory venue provided by Texas Civil Practice and Remedies
Code §15.017 is inapplicable and does not control in this case. Without application of Texas
Civil Practice and Remedies Code §15.017, or any other mandatory venue provision, the general
venue rule applies. Under Texas Civil Practice & Remedies Code §15.002, all lawsuits shall be
brought:
(1) In the county in which all or a substantial part of the events or omissions giving
rise to the claim occurred;
(2) In the county of defendant’s residence at the time the cause of action accrued if
defendant is a natural person;
4839-5553-3084.1 2
(3) In the county of the defendant’s principal office in this state, if the defendant is
not a natural person; or
(4) If Subdivisions (1), (2) and (3) do not apply, in the county in which the plaintiff
resided at the time of the accrual of the cause of action.
Tex. Civ. Prac. & Rem. Code §15.002(a). In this case, subdivisions (1), (2) and (3) all mandate
that Kerr County is the proper venue for this lawsuit. Defendant Camp LaJunta, Inc. is a Texas
corporation with its principal office in Kerr County. Defendant CLJ Management Systems,
L.L.C. is a Texas Limited Liability Company with its principal office in Kerr County. Further,
contrary to Plaintiffs’ assertion, the alleged events giving rise to this lawsuit all occurred at
Camp LaJunta in Kerr County. The fact that Defendant CLJ Management Systems, L.L.C. has
one or more representatives that may occasionally conduct unrelated business in Harris County is
irrelevant to a determination of proper venue. Defendant Blake Smith’s residence is in Kerr
County. Defendant Camp LaJunta 1928, L.P. is a Texas limited partnership with its principal
office in Kerr County. Further, contrary to Plaintiffs’ assertion, the alleged events giving rise to
this lawsuit all occurred at Camp LaJunta in Kerr County. The fact that Defendants have one or
more representatives that may occasionally conduct unrelated business in Harris County is
irrelevant to a determination of proper venue. Only events or omissions “giving rise to the
claim” are properly considered in a venue analysis as specified by Texas Civil Practice and
Remedies Code §15.002(a)(1). See Moveforfree.com, Inc. v. David Hetrick, Inc., 288 S.W.3d
539, 542 (Tex. App. – Houston [14th Dist.] 2009, no pet.)(“In assessing venue under section
15.002(a)(1), we analyze whether the evidence shows that the actions or omissions at issue are
materially connected to the cause of action.”). Thus, under subdivisions (1), (2) and (3) of the
general venue rule, venue is proper in Kerr County only.
4839-5553-3084.1 3
Therefore, Defendants’ request that the Court grant their Motion to Transfer Venue and
transfer this case to the proper county of suit, Kerr County, Texas.
II.
ORIGINAL ANSWER SUBJECT TO
DEFENDANTS’ MOTION TO TRANSFER VENUE
Subject to their Motion to Transfer Venue, Defendants file this, their Original Answer to
Plaintiff’s Second Amended Petition, and in support thereof, would respectfully show as follows:
A. GENERAL DENIAL
Defendants deny each and every, all and singular, the allegations contained in Plaintiffs’
Second Amended Petition and to all supplemental and/or amended pleadings thereto, and
demand strict proof in accordance with the Texas Rules of Civil Procedure.
B. AFFIRMATIVE DEFENSES
Further, Defendants assert the following affirmative defenses:
1. Pleading affirmatively, Defendant Camp LaJunta, Inc. would show that it is not
liable in the capacity in which it has been sued.
2. Pleading affirmatively, Defendants would show that Plaintiffs’ claims are barred
because they were not brought within the applicable statute of limitations.
3. Pleading affirmatively, Defendants would show that any individual claims of John
Doe and Jane Doe, have been dismissed by Plaintiffs, therefore, neither John Doe nor Jane Doe
are entitled to any individual recovery on their own behalf.
4. Pleading affirmatively, Defendants would show that Plaintiffs’ damages, if any,
were the result of the criminal acts and intentional torts of Matthew Bovee, which were
deviations from the performance of his duties and for Bovee’s own purposes. The alleged acts
4839-5553-3084.1 4
by Bovee were not in furtherance of Defendants’ business, were not within the scope of his
employment, and were not for the accomplishment of any object for which Bovee was hired.
5. Pleading affirmatively, Defendants would show that the sole cause, or in the
alternative a proximate cause, of Plaintiffs’ damages, if any, were the criminal acts and
intentional torts of Matthew Bovee, for which these Defendants are not and cannot be held liable.
6. Pleading affirmatively, Defendants would show the criminal acts and intentional
torts of Matthew Bovee which are complained of by Plaintiffs were not known or reasonably
knowable by Defendants prior to or at the time of the alleged events. Thus, such risk of harm
was not reasonably foreseeable by Defendants who therefore had no legal duty to the Plaintiffs
arising out of the criminal acts and intentional torts of Matthew Bovee, and therefore Defendants
should not be held liable for Plaintiffs’ damages, if any.
7. Pleading affirmatively, Defendants would show that the negligent acts and
omissions complained of by Plaintiffs were not the proximate cause of the injuries complained of
by Plaintiffs.
8. Pleading affirmatively, Defendants would show that damages incurred by
Plaintiffs, if any, occurred as a result of several events and factors, including, but not limited to,
pre-existing medical and psychological conditions, the actions of John Doe and Jane Doe, and
the actions of others, each of which were completely unrelated to any acts or omissions on the
part of these Defendants.
9. Pleading affirmatively, Defendants would show that any statements made by
these Defendants concerning the Plaintiffs were true and/or would meet the “substantial truth”
test as provided by law.
4839-5553-3084.1 5
10. Pleading affirmatively, Defendants would show that no statements made by these
Defendants related to the subject incident or ensuing criminal investigation identified the
Plaintiffs by name.
11. Pleading affirmatively, Defendants would show that no acts or omissions
performed by these Defendants were performed with malice and/or gross negligence.
12. Pleading affirmatively, Defendants would show that no false statements were
made by these Defendants, and/or that Plaintiffs did not suffer any damages as a result of their
reliance upon any statements made by these Defendants.
13. Pleading affirmatively, Defendants would show that Plaintiffs are not included in
the class of persons any statute was designed to protect in order to support a negligence per se
claim, and no these Defendants have not engaged in any activity which could constitute
negligence per se.
14. Pleading affirmatively, Defendants would show that Plaintiffs did not authorize or
ratify any act of Matthew Bovee relative to the incident in question and or the alleged injuries
sustained by Plaintiff’s.
15. Pleading affirmatively, Defendants would show that any award of medical and/or
health care expenses must be limited to the amount actually paid or incurred by or on behalf of
the Plaintiffs in accordance with Texas Civil Practice and Remedies Code §41.0105.
16. Pleading affirmatively, Defendants would show that they are entitled to reduction
in the amount for which they may ultimately be held responsible based on the jury’s findings
with respect to the proportion of responsibility assigned to others who caused or contributed to
cause to Plaintiffs injury, if any, including but not limited to any party, counter-defendant, co-
defendant, settling party, and any designated responsible third party, commensurate with
4839-5553-3084.1 6
Sections 32 and 33 of the Texas Civil Practice & Remedies Code. At this time counter
defendants include John Doe and Jane Doe. Designated responsible third parties include
Matthew Bovee.
17. Pleading affirmatively, Defendants assert the provisions of Texas Civil Practice
and Remedies Code §33.013.
18. Pleading affirmatively, Defendants would show that pursuant to Texas Civil
Practice & Remedies Code §41.005(c), exemplary damages may not be awarded against
Defendants because the harm about which Plaintiffs complain arose from the criminal acts of
former employee Matthew Bovee. The actions of former employee Matthew Bovee were (1) not
authorized by these Defendants; (2) were not the result of these Defendants acting with malice in
employing or retaining Matthew Bovee; (3) were not related to any employment of Matthew
Bovee in a managerial capacity nor were his criminal actions within the scope of his
employment; and (4) neither Defendants, nor any manager working on behalf of Defendants,
ratified or approved the criminal conduct of Matthew Bovee.
19. Pleading affirmatively, Defendants would show that any damages awarded
against Defendants are limited by Texas Civil Practice and Remedies Code Chapter 41 and
subject to the substantive and procedural safeguards set forth in that chapter. Such damages are
further limited by the Due Course of Law Clause of the Texas Constitution, and are subject to the
substantive and procedural safeguards applicable under such constitutional provisions.
20. Pleading affirmatively, Defendants would show that Plaintiffs are not entitled to
an award of exemplary damages and that the assessment of exemplary damages against these
Defendants would be unconstitutional under Article 16 of the Constitution of the State of Texas,
Section 26 and pursuant to General Chem. Corp. v. De La Lastra, 852 S.W.2d 916, 923 (Tex.
4839-5553-3084.1 7
1993). In the alternative, any award of exemplary damages should be limited pursuant to the
applicable provisions of the Texas Civil Practice and Remedies Code.
21. Pursuant to Texas Rule of Civil Procedure 193.7, Plaintiffs are hereby placed on
notice that any documents produced by Plaintiffs, Defendants, or any other party to this
litigation, may be used during pretrial hearings and at trial.
22. Defendants respectfully reserve the right to amend, subject to their Motion to
Transfer Venue, this Answer to Plaintiffs’ Petitions as Defendants’ investigation and discovery
in this case permit, as is their right and privilege under the Texas Rules of Civil Procedure and
the laws of the State of Texas.
III.
SPECIAL EXCEPTIONS SUBJECT TO
DEFENDANTS’ MOTION TO TRANSFER VENUE
In addition, subject to their Motion to Transfer Venue, Defendants file these Special
Exceptions to Plaintiffs’ Second Amended Petition pursuant to Texas Rules of Civil Procedure
90 and 91, as follows:
1. Defendants specially except and object to Plaintiffs’ failure to separately number
each paragraph in the Original Petition in violation of Rule 50 of the Texas Rules of Civil
Procedure. Defendants pray that Plaintiffs be required to replead to comply with Rule 50.
2. Defendants specially except and object to the allegations made by Plaintiffs in
Paragraphs 42 through 46, on page 11 of Plaintiffs’ Second Amended Petition because Plaintiffs
fail to state which Defendant(s) allegedly made defamatory statements; the specific defamatory
statements made by Defendant(s); and, Plaintiffs fail to state to whom Defendants made any
allegedly defamatory statements. Moreover, Plaintiffs fail to state how Plaintiff Johnny Doe, the
only Plaintiff with claims based on alleged defamation, suffered pecuniary injury as a result of
4839-5553-3084.1 8
the alleged defamatory statements. Plaintiffs’ failure to properly plead the facts underlying the
defamation claim deprives Defendants of a reasonable opportunity to prepare their defense and
as such is contrary to the Texas Rules of Civil Procedure. Defendants pray that Plaintiffs’ claims
in Paragraphs 42 through 46 be stricken or in the alternative that Plaintiffs be required to replead
with greater specificity.
3. Defendants specially except and object to the allegations in Paragraphs 57
through 62 on pages 14 and 15 of Plaintiffs’ Second Amended Petition regarding assertion of
misrepresentations of fact because Plaintiffs fail to set forth any specific misrepresentations of
any specific facts, by any specific Defendant. Moreover, Plaintiffs failed to state how those
alleged misrepresentations of fact were relied upon and by whom, and further how that reliance
resulted in what damage. Plaintiffs’ inadequate pleading deprives Defendants of a reasonable
opportunity to prepare their defense and as such is contrary to the Texas Rules of Civil
Procedure. Defendants pray that Plaintiffs’ claims in Paragraphs 57 through 62 be stricken or in
the alternative that Plaintiffs be required to replead with greater specificity.
4. Defendants specially except and object to the allegations in Paragraphs 63
through 65 on pages 15 and 16 of Plaintiffs’ Second Amended Petition regarding the “Duty of
Master to Control Conduct of Servant” as Plaintiff fail to allege any cause of action recognized
under the laws of the State of Texas. To the extent Plaintiffs allege Defendants owed a “duty of
a master to control the conduct of his servant” giving rise to a negligence cause of action, duty is
only one element of a negligence cause of action, and Plaintiffs have failed to allege facts
relative to each of the elements of a negligence claim. Plaintiffs have failed to plead facts
establishing a breach of a duty or alleged damages which proximately resulted from such breach.
Pleading improved on each element is necessary. Plaintiffs’ failure to properly plead the
4839-5553-3084.1 9
necessary elements and facts to support a valid cause of action deprives Defendants of a
reasonable opportunity to prepare their defense and as such is contrary to the Texas Rules of
Civil Procedure. Defendants pray that Plaintiffs’ claims in Paragraphs 63 through 65 be stricken
or in the alternative that Plaintiffs be required to replead with greater specificity.
5. Defendants specially except and object to the allegations in Paragraphs 66
through 68 on pages 16 and 17 of Plaintiffs’ Second Amended Petition, as Plaintiffs fail to allege
facts supporting each element of Plaintiff’s negligence per se claim. Plaintiffs failed to identify
which of Defendants’ employees or agents allegedly had cause to believe that a minor had been
or may have been abused or neglected as defined in the Texas Family Code. Plaintiffs failed to
allege how any of the Defendants’ employees or agents had reason to believe that a minor had
been abused or neglected. Plaintiffs failed to allege the abuse or neglect in question, as defined
in the Family Code. Plaintiffs’ failure to properly plead the facts underlying the assertion that
the acts or omissions of one or more of the Defendants constituted Negligence Per Se deprives
each Defendant of a reasonable opportunity to prepare a defense and as such is contrary to the
Texas Rules of Civil Procedure. Defendants pray that Plaintiffs’ claims in Paragraphs 66
through 68 be stricken, or in the alternative that Plaintiffs be required to replead with greater
specificity.
6. Defendants specially except and object to the allegations in Paragraphs 69 and 70,
on page 17 of Plaintiffs’ Second Amended Petition regarding the alleged tort of assault by
infliction of bodily injury as Plaintiffs fail to allege facts supporting element of this cause of
action. Plaintiffs’ petition fails to identify which of the four Defendants allegedly committed the
tort, alleging generically that this was committed by “Defendants.” Plaintiffs fail to allege facts
upon which any Defendant is alleged to have acted intentionally, knowingly, or recklessly; nor
4839-5553-3084.1 10
has Plaintiff alleged how any Defendant made contact with Johnny Doe’s person which resulted
in bodily injury. Plaintiffs’ failure to properly plead the facts underlying the assertion that any of
the Defendants committed the tort of assault through infliction of bodily injury deprives the
appropriate Defendant(s) of a reasonable opportunity to prepare their defense and as such is
contrary to the Texas Rules of Civil Procedure. Defendants pray that Plaintiffs’ claims in
Paragraphs 69 and 70 be stricken or in the alternative that Plaintiffs be required to replead with
greater specificity.
7. Defendants specially except and object to the allegations in Paragraphs 80
through 81 on pages 18 and 19 wherein it is alleged that “other agents, employees, and
representatives are vice-principals of Camp LaJunta 1928, L.P.” Plaintiffs fail to identify who
the “other agents, employees and representatives” are who are alleged to be “vice-principals.”
Moreover, Defendants specially except and object to the statement that Blake Smith and “other
employees, agent, and representatives of Camp LaJunta 1928, L.P. committed a tort” as the
identity of the individuals is not provided and no facts are alleged with respect to the alleged tort
committed by any of these individuals. Plaintiffs merely allege categories of persons who may
be considered a vice-principal, but fail to allege any facts to establish under which category any
of the alleged individuals who are alleged to qualify as a vice-principal, fall. Plaintiffs’ failure to
properly allege facts supporting the assertion that certain individuals, representatives, employees
and agents are vice-principals of Camp LaJunta 1928, L.P., deprives Defendants of a reasonable
opportunity to prepare their defense, contrary to the Texas Rules of Civil Procedure. Defendants
pray that Plaintiffs’ claim in Paragraphs 80 through 81 be stricken or in the alternative that
Plaintiffs be required to replead with greater specificity.
4839-5553-3084.1 11
8. Defendants specially except and object to the allegations in Paragraphs 82
through 84, on pages 19 and 20, wherein it is alleged that the generic “Defendants” are liable for
acts and omissions for “Failure of Principal to Perform Non-Delegable Duty.” Defendants
specially except and object as the alleged “Failure of Principal to Perform Non-Delegable Duty,”
does not allege a recognized cause of action under Texas law. To the extent, Plaintiffs claim a
“non-delegable duty” doctrine forms the basis of an alleged “vice-principal” liability claim,
Plaintiffs’ fail to allege sufficient facts to afford Defendants an opportunity to prepare their
defenses. Plaintiffs fail to identify the “other employees” who were allegedly confided with
certain duties, or the facts in which those “other employees” allegedly failed to perform such
duties. Plaintiffs’ failure to properly plead facts to establish the “legal doctrine” of non-
delegable duty and how that “legal doctrine” is alleged to create a cause of action recognized in
Texas and applicable in this case, fails to afford Defendants a reasonable opportunity to prepare
their defense and as such is contrary to the Texas Rules of Civil Procedure. Defendants pray that
Plaintiffs’ claim be stricken or in the alternative that Plaintiffs be required to replead Paragraphs
82 through 84 with greater specificity.
9. Defendants specially except and object to the allegations in Paragraphs 85
through 87 on page 20 of Plaintiffs’ Second Amended Petition regarding the “legal doctrine” of
“Use of Force” as Plaintiffs fail to set allege that cause of action recognized under Texas law.
Plaintiffs failed to plead how the intentional, unauthorized tortious acts of Bovee were
committed in connection with his employment. Plaintiffs failed to allege how those intentional
tortious acts were expected or foreseeable by Defendants in light of Bovee’s employment duties.
Plaintiffs’ failure to plead a recognized cause of action and set forth facts upon which the claim
is based deprives Defendants of a reasonable opportunity to prepare their defense and as such is
4839-5553-3084.1 12
contrary to the Texas Rules of Civil Procedure. Defendants pray that Plaintiffs’ claim be
stricken or in the alternative that Plaintiffs be required to replead Paragraphs 85 through 87 with
greater specificity.
10. Defendants specially except and object to Plaintiff’s allegation of unspecified
damages and request that Plaintiffs be required to replead to state the maximum amount of
damages sought.
11. Defendants specially except and object to Plaintiffs’ allegations on page 21,
Paragraph 89(n), and page 23, Paragraph XI, seeking attorney’s fees, because Plaintiffs do not
cite any statute or authority establishing any basis for recovery of attorneys’ fees in this
litigation. Defendants request that Plaintiffs be required to replead to specify the statutory basis
for this requested relief.
12. Defendants specially except and object to Plaintiffs’ allegations in Paragraphs 93
and 94, on page 22, wherein it is alleged that “other employees, agents and representatives of
Camp LaJunta 1928, L.P….were vice-principals of Camp LaJunta 1928, LP,” as Plaintiffs fail to
identify who the other agents, employees and representatives are who are alleged to be vice-
principals. Moreover, Defendants specially except and object to the statement that these
unidentified “other employees, agents, and representatives” acts and omissions constitute direct
acts and omissions of Camp LaJunta 1928, L.P., as the petition fails to set out facts related to the
alleged acts and omissions of these individuals. Defendants’ further object as it is claimed that
these “other employees, agents, and representatives” acted with malice in causing harm to the
Plaintiffs, but the petition fails to identify the individuals allegedly involved or how they acted
with malice. Plaintiffs’ failure to properly plead which unidentified individuals are vice-
principals or facts upon which they are alleged to have acted with malice, denies Defendants a
4839-5553-3084.1 13
reasonable opportunity to prepare their defense and as such these allegations are contrary to the
Texas Rules of Civil Procedure. Defendants pray that Plaintiffs’ claims in Paragraphs 93 and 94
be stricken or in the alternative that Plaintiffs be required to replead with greater specificity.
13. Defendants specially except and object to Plaintiffs’ allegations on pages 22 and
23, Paragraph 95, wherein it is alleged that Matthew Bovee is a vice-principal of Camp LaJunta
1928, L.P., as Plaintiffs’ petition fails to set forth the facts for each essential element of such a
claim. Plaintiffs failed to allege facts supporting their allegations that Matthew Bovee acted with
a specific intent to cause substantial injury to the minor, or acted in a manner which involved an
extreme degree of risk of harm to Johnny Doe for which Matthew Bovee would have been
aware, or facts to establish that Matthew Bovee proceeded with conscious indifference for the
rights, safety, and welfare of Johnny Doe. Plaintiffs’ failure to properly plead the facts
underlying the assertion that there is no statutory cap on exemplary/punitive damages fails to
afford Defendants a reasonable opportunity to prepare their defense and as such this allegation is
contrary to the Texas Rules of Civil Procedure. Defendants pray that Plaintiffs’ claims in
Paragraph 95 be stricken or in the alternative that Plaintiffs be required to replead with greater
specificity.
14. Defendants specially except and object to Plaintiffs’ allegations in Paragraph 89,
wherein it is alleged that “Plaintiffs suffered serious personal injury and mental anguish and
trauma. Accordingly, Plaintiffs seeks (sic) the following damages…” This Court ordered
Plaintiffs John Doe and Jane Doe to replead and delete any reference to any alleged personal
injuries or damages they are claiming for themselves, however in Paragraph 89, Plaintiffs John
Doe and Jane Doe are doing just that. Plaintiffs John Doe and Jane Doe therefore ought to be
4839-5553-3084.1 14
ordered to replete and delete references to any Plaintiff alleging damages other than Johnny Doe,
or in the alternative, Paragraph 89 should be stricken.
IV.
COUNTERCLAIM AND REQUEST FOR DISCLOSURE
1. Defendants/Counterclaim Plaintiffs in the above-captioned litigation file these
Counterclaims pursuant to Texas Rule of Civil Procedure 97(b) and Texas Civil Practice and
Remedies Code Section 33.003, and in support thereof, would respectfully show the Court, as
follows:
A.
PARTIES AND SERVICE
2. Plaintiff/Counterclaim Defendant John Doe, an individual who resides in Harris
County, has appeared in this case and is being served via counsel of record.
3. Plaintiff/Counterclaim Defendant Jane Doe, an individual who resides in Harris
County, has appeared in this case and is being served via counsel of record.
4. Defendants/Counterclaim Plaintiffs Camp LaJunta, Inc., CLJ Management
Systems, L.L.C., Camp LaJunta 1928, L.P. have appeared in this case and are before the Court.
5. Defendant/Counterclaim Plaintiff Blake Smith has appeared in this case and is
before the Court.
B.
FACTUAL BACKGROUND
6. In May 2010, the minor Plaintiff Johnny Doe made an “outcry” to his treating
mental health professional alleging that he had been sexually assaulted by Matthew Bovee, a
former Camp Counselor, when he attended Camp LaJunta (“Camp”) ten months earlier in July
4839-5553-3084.1 15
2009. This outcry was reported by Plaintiffs to the Kerr County Sheriff’s Office and a criminal
investigation ensued. The Camp first learned of the alleged assault nearly a year after it
allegedly occurred, in response to requests from the Kerr County Sheriff apartment for records
concerning Matthew Bovee. The Camp, in coordination with the Sheriff’s Office, sent letters to
all of its “Camp families” notifying them of the allegations, and asking that any parent with
information regarding Matthew Bovee contact the Investigating Officers with the Kerr County
Sheriff’s Office, or if they were uncomfortable with contacting the officers directly, advise the
Camp so that the Camp could relay the information to the authorities. This letter resulted in
various parents contacting the Camp to ask for more details and/or information. In response to
the various inquiries received, the Defendants/Counterclaim Plaintiffs, at no time, made any
defamatory, libelous or slanderous statements concerning the minor Johnny Doe or his family.
Moreover, at no time, did these Defendants/Counterclaim Plaintiffs divulge the identity of
Johnny Doe or his family.
7. While these Defendants/Counterclaim Plaintiffs have made, and continue to
make, every effort to protect the identity of the camper/family, Johnny Doe’s parents, Jane Doe
and John Doe, shortly after the “outcry,” began advising family friends, school administrators,
and members of the minor’s school community of Johnny Doe’s and his association with the
incident.
8. Despite the fact that it was Plaintiffs, not any Defendant, who made public the
identity of Johnny Doe, the Plaintiffs have asserted claims for defamation, libel and/or slander
against these Defendants, and continue to maintain that cause of action.
Defendants/Counterclaim Plaintiffs deny they made any defamatory, libelous or slanderous
4839-5553-3084.1 16
statement regarding Johnny Doe and/or his family, and further deny that they revealed the
identity of Johnny Doe.
9. Should any Plaintiff herein prevail on a cause of action for defamation, libel
and/or slander against any Defendant herein, such Defendants/Counterclaim Plaintiffs’ acts
and/or omissions should be compared with the acts and/or omissions of Mr. John Doe and Mrs.
Jane Doe for the purpose of determining percentages of comparative responsibility pursuant to
the provisions of Texas Civil Practices and Remedies Code Sec. 33.003(a).
C.
COUNTER CLAIM CAUSES OF ACTION
10. The allegations set forth above are incorporated into this section as if set forth
fully herein.
11. Pleading now in the alternative, should such be necessary, and while continuing to
assert they are not liable to the minor Plaintiff Johnny Doe for defamation, libel and/or slander,
or any related cause, Defendants/Counterclaim Plaintiffs by way of counterclaim against
Plaintiff/Counterclaim Defendant Jane Doe and Plaintiff/Counterclaim Defendant John Doe,
assert the application of the determination of percentages of responsibility provision of the Texas
Civil Practice and Remedies Code Section 33.003, and would request that this Court instruct the
jury to determine the percentage of comparative responsibility of Plaintiff/Counterclaim
Defendant Mrs. Jane Doe and Plaintiff/Counterclaim Defendant Mr. John Doe with that, if any,
of the Defendants/Counterclaim Plaintiffs in connection with causing or contributing to cause
any damages to the minor Plaintiff Johnny Doe by way of defamation, libel, and/or slander, or
any related cause of harm for which recovery of damages is sought.
4839-5553-3084.1 17
12. REQUEST FOR DISCLOSURE: Pursuant to TRCP Rule 194, Plaintiffs are
requested to disclose, within 30 days of service of this request, the information or material
described in TRCP Rule 194.2 (c), (e), (g), (i), (j), (k) and (l).
V.
JURY REQUEST
On information and belief Plaintiffs allege that the value of their claims exceeds the
amount required for trial by jury. The value of Defendants’ Counter Claims likewise exceeds the
amount required for trial by jury. Defendants desire and are entitled to trial by jury on all issues.
VI.
WHEREFORE, PREMISES CONSIDERED Defendants CAMP LAJUNTA, INC.,
CLJ MANAGEMENT SYSTEMS, INC., CAMP LAJUNTA 1928, LP AND BLAKE SMITH
respectfully request the following:
1. Following a hearing, the Court grant Defendants’ Motion to Transfer Venue and
transfer the case to Kerr County, Texas;
2. Following trial, judgment be rendered for Defendants that Plaintiffs take nothing
from Defendants in connection with the lawsuit;
3. That the Court grant Defendants’ Special Exceptions to Plaintiffs’ Second
Amended Petition and that Plaintiffs be Ordered to file an amended petition complying with
Defendants’ Special Exceptions within ten (10) days of the Court’s Order; and,
4. That the jury be instructed to compare and apportion percentages of responsibility
with respect to claims of defamation, libel and/or slander, between Plaintiff/Counterclaim
Defendants John Doe and Jane Doe and Defendants/Counterclaim Plaintiffs; and,
4839-5553-3084.1 18
5. That Defendants be awarded such other and further relief, both legal and
equitable, to which they may show themselves justly entitled.
Respectfully submitted,
LEWIS BRISBOIS BISGAARD & SMITH LLP
/s/ Kent M. Adams
KENT M. ADAMS
Texas Bar No. 00869200
kent.adams@lewisbrisbois.com
SARAH M. DAVIS
Texas Bar No. 24031998
sarah.davis@lewisbrisbois.com
KRISTIE E. JOHNSON
Texas Bar No. 24038382
kristie.johnson@lewisbrisbois.com
Weslayan Tower, Suite 1400
24 East Greenway Plaza
Houston, Texas 77046
(713) 659-6767 Telephone
(713) 759-6830 Facsimile
ATTORNEYS FOR DEFENDANTS
CAMP LAJUNTA, INC.,
CLJ MANAGEMENT SYSTEMS, INC.,
CAMP LAJUNTA 1928, L.P. AND
BLAKE SMITH
4839-5553-3084.1 19
CERTIFICATE OF SERVICE
I hereby certify that a true and correct copy of the above and foregoing Pleading was
forwarded by facsimile on this 23rd day of July, 2014, to:
Rusty Hardin & Associates, LLP Via E-Service
Rusty Hardin
Andy Drumheller
Robert P. Wynne
5 Houston Center
1401 McKinney, Suite 2250
Houston, Texas 77010
/s/ Kent M. Adams
______________________________________
KENT M. ADAMS
4839-5553-3084.1 20
TAB C
5/18/2015 4:36:30 PM
Chris Daniel - District Clerk Harris County
Envelope No. 5329321
By: BERNADETTE LYNCH
Filed: 5/18/2015 4:36:30 PM
CAUSE NO. 2012 - 31192
JOHNNY DOE, PLAINTIFF by and § IN THE DISTRICT COURT OF
Through his Parents, JOHN DOE §
and JANE DOE §
Plaintiff, §
§
V. § HARRIS COUNTY, TEXAS
§
CAMP LAJUNTA 1928, LP., and §
BLAKE SMITH §
Defendants. § 333rd JUDICIAL DISTRICT
DEFENDANTS’ MOTION FOR LEAVE
TO DESIGNATE RESPONSIBLE THIRD PARTIES
TO THE HONORABLE JUDGE OF SAID COURT:
Defendants Camp LaJunta 1928 L.P., Blake Smith, Camp LaJunta, Inc., and CLJ
Management Systems, L.L.C. (hereinafter collectively sometimes referred to as “Defendants”)
file this Motion for Leave to Designate John Doe and Jane Doe as Responsible Third Parties and
respectfully show the following:
I. INTRODUCTION1
This suit for alleged damages is brought by John Doe and Jane Doe (sometimes hereafter
“the Parents”), as next friends of Johnny Doe, their seventeen (17) year old son. Plaintiff alleges
he was sexually molested by a former employee of one of the Defendants while attending
summer camp in 2009. Plaintiff also asserts defamation claims against the Defendants, based
upon alleged oral and written defamatory statements. Discovery, however, has revealed
overwhelming and uncontroverted evidence demonstrating that his own Parents were the
1
Because Plaintiffs brought this action as a “John Doe” proceeding to protect the identity of the Minor
Plaintiff, and due to the sensitive and confidential nature of the evidence, and in light of the Agreed Protective
Order, the exhibits which support this motion will not be filed with the motion but will be submitted to the Court for
in camera inspection, and will be made the subject of a Motion to Seal.
4845-9635-6387.1 1
producing and/or contributory cause of his alleged defamation damages as it was they who made
his identity known.
This case is preferentially set for trial on August 3, 2015. Accordingly, Defendants’
motion is being filed on or before 60 days prior to trial. Tex.Civ.P.Rem.Code §33.004(a).
II. GROUNDS FOR DESIGNATING JOHN DOE AND JANE DOE
AS RESPONSIBLE THIRD PARTIES
There is ample testimony that it was, in reality, Johnny Doe’s Parents who divulged to
family, friends, and school officials that their son was the child involved in the camp abuse
incident in question, not Defendants. Specifically, John Doe has testified in this case that in
2012, he told their friends the “Jones” that Johnny Doe was the child involved in the camp abuse
incident in question.2 Other witnesses have corroborated this startling admission. Another family
friend, S.A.3, testified that after receipt of the letter issued by the Camp notifying the parents of
all campers of the incident which had been reported, but without identifying the child involved,
S.A. discussed the matter with Mr. “Jones”, wherein S.A. speculated on the child involved.4
Shortly after the discussion between S.A. and Mr. “Jones”, John Doe contacted S.A. and
revealed to him that Johnny Doe was the child involved.5
Moreover, S.W.6, who was Johnny Doe’s principal at H.S.7 Middle School, has testified
that prior to Johnny starting the 6th grade at H.S. in 2010,8 John Doe and Jane Doe met with her
2
John Doe’s Deposition, P 83, L. 1 – P. 84, L24.
3
“S.A.” is being used due to the confidential nature of the proceedings and protective order in place.
4
S.A. Deposition, P. 49, L 23 – P. 51, L. 8
5
Id.
6
“S.W.” is used due to the confidential nature of the proceedings and protective order.
7
“H.S.” is used due to the confidential nature of the proceedings and protective order.
4845-9635-6387.1 2
and advised her of Johnny’s “issues.”9 The people “in the community” at H.S. were unaware of
Johnny Doe’s [abuse history], prior to his enrolling at H.S.10 S.W., with the permission of the
Parents, then notified certain teachers about Johnny Doe’s “special circumstances.”11
Moreover, Johnny Doe expressed considerable frustration to his mental health care
practioners concerning how much of his personal business, including his history of abuse at
summer camp, his mother Jane Doe had shared with other people, without Johnny Doe’s
permission.12 Johnny Doe’s mother’s sharing of his private information with others caused him
agitation and stress.13 His mental health provide Dr. Mooney tried to work through the problems
between Johnny Doe and his Mom caused by her sharing his personal information with others
without his permission.14 In an October 18, 2012 progress note, in another significant admission,
Johnny Doe’s mother validated Johnny’s concerns about her revealing his private information
without his permission, and said she would “try to be more mindful of this in the future.”15
Additionally, despite an Agreed Protective Order of August, 2012, entered by Judge
Halbach prohibiting parties and their attorneys from disclosing confidential information
regarding the case, Jane Doe agreed to be interviewed for a February 20, 2014 article in the
8
S.W. Deposition, P. 10, L. 3 - 6
9
S.W. Deposition, P. 12, L. 4 – P. 13, L. 6
10
S.W. Deposition, P. 13, L. 23 – P. 14, L. 6
11
S.W. Deposition, P. 16, L. 5 – P. 18, L. 3
12
Mooney Deposition, P. 18, L. 12-19
13
Mooney Deposition, P. 19, L. 9-17
14
Mooney Deposition, P. 20, L. 1-12
15
Mooney Deposition, P. 20, L. 22-25; P. 21, L 1-11
4845-9635-6387.1 3
Houston Press newspaper concerning Johnny Doe’s abuse, providing the reporter with
documents regarding Johnny Doe which revealed his identity.16
One of the essential elements of a defamation cause of action is that the defamatory
statement identify the plaintiff. Huckabee v. Time Warner Entm’t Co., 19 S.W.3d 413, 429 (Tex.
2000); Newspapers, Inc. v. Mathews, 339 S.W.2d 890,893 (Tex. 196); Kaufman v. Islamic Soc’y,
291 S.W,3d 130, 144 (Tex. App. – Forth Worth 2009, pet. denied). Yet, there has been no
allegation in this case that any statement, by any Defendant, specifically identified the Plaintiff.
Yet, there is ample evidence that it was John Doe and Jane Doe who actually identified the
Plaintiff. As such, there acts should be considered by the jury for purposes of the defamation
claim. In other words, but for the actions of his Parents, the identity of Johnny Doe would not
have been made known to family, friends, and people in Johnny Doe’s school community.
Accordingly, John Doe and Jane Doe are each responsible third parties whose acts caused or
contributed to the damages Plaintiff claims by way of the alleged defamation.
III. OVERVIEW OF LAW ON RESPONSIBLE THIRD PARTY
The term “responsible third party” means “any person who is alleged to have caused or
contributed to causing in any way the harm for which recovery of damages is sought, whether by
negligent act or omission, by any defective or unreasonably dangerous product, by other conduct
or activity that violates an applicable legal standard, or by any combination of these.” See TEX.
CIV. PRAC. & REM. CODE § 33.011(6) (“the Act”) (emphasis added). Any one or more of the
aforementioned acts or omissions of John Doe and/or Jane Doe “is alleged to have caused or
16
Houston Press Article.
4845-9635-6387.1 4
contributed to causing in any way the harm for which recovery of damages is sought…” Id. at §
33.011(6).
The Act permits a defendant to designate a person as a responsible third party by filing a
motion for leave to designate at least 60 days before the trial date. Id. at § 33.004(a). This
motion is being filed more than 60 days before the trial date. The Court “shall grant leave” to
designate a responsible third party unless plaintiff files an objection on or before the 15th day
before the motion is served. Id. at § 33.004(f). Even if an objection is timely filed, the Court
“shall grant leave” to designate a responsible third party unless plaintiff establishes (1) the
defendant did not plead sufficient facts concerning the alleged responsibility of the putative
responsible third party, and (2) after having been granted leave to re-plead, the defendant failed
to plead sufficient facts. Id. at § 33.004(g). Defendants have pled sufficient facts concerning the
alleged responsibility of John Doe and Jane Doe in identifying their son and causing or
contributing “in any way” the injuries Plaintiff claims as a result of the alleged defamatory
statements.
The right to designate a responsible third party is statutory and does not require
Defendants to join the responsible third parties to the suit. The granting of Defendants’ motion
or a finding of fault against John Doe and/or Jane Doe does not by itself impose liability on the
responsible third party. Id. at § 33.004(i). Therefore, it matters not whether the responsible third
party is a subscribing employer, governmental entity or anyone against whom Plaintiff has no
claim. Galbraith Eng’g Consultants, Inc. v. Pochucha, 290 S.W.3d 863, 868-69 (Tex. 2009)
(“Thus, a defendant may designate a responsible third party even though that party possesses a
defense to liability, or cannot be formally joined as a defendant, or both.”).
4845-9635-6387.1 5
By granting this motion, John Doe and Jane Doe are each designated as a responsible
third party without further action by the Court or any other party. Id. at § 33.004(h). The jury,
therefore, is permitted to determine the percentage of responsibility, stated in whole numbers,
with respect to Plaintiff, Defendants, Matthew Bovee17, John Doe, and Jane Doe. Id. at §
33.003(b).
WHEREFORE, Defendants, Camp LaJunta 1928 L.P., Blake Smith, Camp LaJunta, Inc.,
and CLJ Management Systems, L.L.C. respectfully request that the Court grant their Motion for
Leave to Designate John Doe and Jane Doe as a Responsible Third Party and award Defendants
all other and further relief, at law or in equity, to which they may show themselves justly
entitled.
Respectfully submitted,
LEWIS BRISBOIS BISGAARD & SMITH, LLP
_/s/ Kent M. Adams____________________________
KENT M. ADAMS
State Bar Number 00869200
Kent.adams@lewisbrisbois.com
SARAH M. DAVIS
State Bar Number 24031998
Sarah.davis@lewisbrisbois.com
KRISTIE E. JOHNSON
State Bar Number 24038382
Kristie.johnson@lewisbrisbois.com
24 East Greenway Plaza, Suite 1400
Houston, Texas 77046
(713) 659-6767 Telephone
(713) 759-6830 Facsimile
ATTORNEYS FOR DEFENDANTS
CAMP LAJUNTA 1928, LP, BLAKE SMITH,
CLJ MANAGEMENT SYSTEMS, LLC AND
CAMP LAJUNTA, INC.
17
Bovee was previously designated as a Responsible Third Party in this suit.
4845-9635-6387.1 6
A NOTE CONCERNING EXHIBITS
Exhibits referenced herein will be submitted to the Court Only, for In Camera review
only and will be subject to a Motion to Seal.
CERTIFICATE OF CONFERENCE
I HEREBY CERTIFY that we attempted to contact Plaintiff’s counsel by email
correspondence and by phone, but Plaintiff’s counsel was unavailable and as of the time of
filing, Plaintiff’s position could not be ascertained. Accordingly, the motion is being submitted
as opposed.
_/s/ Kent M. Adams____________________________
KENT M. ADAMS
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a true and correct copy of the above and foregoing Motion for
Leave to Designate Responsible Third Parties has been served on the following by electronic
service on this 18th day of May, 2015.
Rusty Hardin & Associates, LLP
Rusty Hardin
Andy Drumheller
Robert P. Wynne
5 Houston Center
1401 McKinney, Suite 2250
Houston, Texas 77010
_/s/ Kent M. Adams____________________________
KENT M. ADAMS
4845-9635-6387.1 7
CAUSE NO. 2012 - 31192
JOHNNY DOE, PLAINTIFF by and § IN THE DISTRICT COURT OF
Through his Parents, JOHN DOE §
and JANE DOE §
Plaintiff, §
§
V. § HARRIS COUNTY, TEXAS
§
CAMP LAJUNTA 1928, LP., and §
BLAKE SMITH §
Defendants. § 333rd JUDICIAL DISTRICT
ORDER
Having considered Defendants’, Camp LaJunta 1928 L.P., Blake Smith, Camp LaJunta,
Inc., and CLJ Management Systems, L.L.C., Motion for Leave to Designate John Doe and Jane
Doe as Responsible Third Parties under Chapter 33 of the Texas Civil Practice and Remedies
Code, the Court grants the motion in all respects. It is therefore
ORDERED, ADJUDGED and DECREED that John Doe and Jane Doe are each
designated as a responsible third party and the trier of fact shall determine their respective
percentage of responsibility, if any, with respect to Plaintiff’s defamation claim.
SIGNED this _____ day of ______________________, 2015.
_____________________________________
JUDGE PRESIDING
4845-9635-6387.1 8
Approved as to Form and Entry Requested:
LEWIS BRISBOIS BISGAARD & SMITH, LP
_/s/ Kent M. Adams____________________________
KENT M. ADAMS
State Bar Number 00869200
Kent.adams@lewisbrisbois.com
SARAH M. DAVIS
State Bar Number 24031998
Sarah.davis@lewisbrisbois.com
KRISTIE E. JOHNSON
State Bar Number 24038382
Kristie.johnson@lewisbrisbois.com
24 East Greenway Plaza, Suite 1400
Houston, Texas 77046
(713) 659-6767 Telephone
(713) 759-6830 Facsimile
ATTORNEYS FOR DEFENDANTS
CAMP LAJUNTA 1928, LP, BLAKE SMITH,
CLJ MANAGEMENT SYSTEMS, LLC, AND
CAMP LAJUNTA, INC.
4845-9635-6387.1 9
TAB D
6/10/2015 5:28:23 PM
Chris Daniel - District Clerk Harris County
Envelope No. 5629602
By: BERNADETTE LYNCH
Filed: 6/10/2015 5:28:23 PM
CAUSE NO. 2012-31192
JOHNNY DOE, PLAINTIFF § IN THE DISTRICT COURT OF
by and through his Parents, JOHN §
DOE and JANE DOE, §
§ HARRIS COUNTY, TEXAS
v. §
§
CAMP LA JUNTA 1928, L.P., et al. § 333rd JUDICIAL DISTRICT
MOTION TO STRIKE AND OBJECTION TO
MOTION FOR LEAVE TO DESIGNATE RESPONSIBLE THIRD PARTIES
Plaintiff, JOHNNY DOE, A MINOR, by and through his parents, JOHN DOE and JANE
DOE, INDIVIDUALLY AND AS NEXT FRIENDS OF JOHNNY DOE, A MINOR (collectively,
the “Doe Family”) submits this Motion to Strike and Objection to Defendants Camp La Junta
1928, L.P., Camp La Junta, Inc., CLJ Management Systems, L.L.C., and Blake Smith’s
(collectively, the “Camp”) Motion for Leave to Designate Responsible Third Parties. See Image
Number 65468437 (May 18, 2015). The Court should deny the Camp’s motion because the Camp
has failed to allege and cannot introduce any evidence that Jane Doe and/or John Doe violated any
applicable legal standard in a manner that caused or contributed to the damages suffered by Johnny
Doe. See TEX. CIV. PRAC. & REM. CODE §§ 33.003, .004, .011(6). As a result, the Doe Family
respectfully requests that the Court deny the Camp’s motion and/or strike the Camp’s designation.
I.
BACKGROUND
In July 2009, Senior Camp Counselor Matthew Bovee (“Bovee”) sexually assaulted
Johnny Doe (an 11-year-old boy) on multiple occasions by penetrating Johnny Doe’s anus and
groping Johnny Doe’s genitalia. On May 10, 2011, Bovee pleaded guilty to a felony offense for
his criminal actions.
In May 2012, the Doe Family filed this lawsuit for various causes of action. The Camp’s
unlawful acts and omissions before, during, and after the sexual abuse are detailed more
thoroughly in the Second Amended Petition. See Image Number 61527595 (July 10, 2014). As a
brief factual summary, the Camp committed numerous tortious acts (independently and
vicariously) (a) through their own acts of defamation, misrepresentation, and cover-up; (b) arising
from their employment, supervision, and retention of Bovee; (c) through their investigation of and
failure to report sexual abuse; and (d) through various other acts and omissions at issue in this civil
action. Id. at ¶¶ 11–87.
In May 2015, the Camp filed a Motion to Designate Responsible Third Parties. Through
this motion, the Camp contends that John Doe and Jane Doe—Johnny Doe’s father and mother—
should each be designated as responsible third parties because each of them caused or contributed
to causing Johnny Doe’s defamation damages. See Image Number 65468437 at 1–2 (May 18,
2015). The Doe Family now moves to strike the designation and objects to the Camp’s motion,
pursuant to §33.004 of the Texas Civil Practices & Remedies Code.
III.
LAW AND ANALYSIS
In Texas, a “responsible third party” is defined as “any person who is alleged to have
caused or contributed to causing in any way the harm for which recovery of damages is sought,
whether by negligent act or omission, by any defective or unreasonably dangerous product, by
other conduct or activity that violates an applicable legal standard, or by any combination of these.”
TEX. CIV. PRAC. & REM. CODE § 33.011(6). Where such a person exists, a defendant may move to
designate that person as a responsible third party on or before the 60th day before trial. Id. at §
33.004(a). If the motion is granted, the fact-finder becomes entitled to apportion a percentage of
fault to the responsible third party’s wrongful conduct. Id. at § 33.003.
2
In response, any other party may object to the motion and/or may seek to strike the
designation. Id. at § 33.004(g), (l). A trial court should deny a motion to designate responsible
third party where the defendant fails to sufficiently allege facts concerning “the alleged
responsibility of the person.” Similarly, a trial court must strike a designation of a responsible
third party “unless a defendant produces sufficient evidence to raise a genuine issue of fact
regarding the designated person’s responsibility for the claimant’s injury or damages.” Id. at §
33.004(l).
In this matter, the Camp’s attempt to designate Jane Doe and John Doe as responsible third
parties fails because (1) the Camp has not sufficiently alleged that the parents violated any
applicable legal standard, and (2) there is no evidence to support the Camp’s claims against the
parents. In order to designate a person as a responsible third party, the defendant must allege and
produce evidence in support of the allegation that the proposed responsible third party actually
committed a wrongful act of some kind. The Camp simply has not done so here.
First, the Camp’s motion does not allege that Jane Doe or John Doe violated any applicable
legal standard. It appears as if the Camp is trying to allege that John Doe and Jane Doe committed
tortious acts of defamation against Johnny Doe and that these acts caused or contributed to Johnny
Doe’s injuries. The Camp, however, simply has not alleged that Jane Doe or John Doe violated
this legal standard.
In order to prove a cause of action for defamation, a claimant must generally allege and
prove the following substantive elements:
1. The defendant published a statement of fact;
2. The statement referred to the claimant;
3. The statement was defamatory;
4. The statement was false;
5. With regard to the truth of the statement, the defendant was acting with
malice, was negligent, or liable without regard to fault; and
3
6. The claimant suffered injury as a result of the publication.
See, e.g., TEX. CIV. PRAC. & REM. CODE §73.001; Philadelphia Newspapers, Inc. v. Hepps, 475
U.S. 767, 776-77 (1986); Gertz v. Robert Welch, Inc., 418 U.S. 23, 342 (1974); N. Y. Times Co. v.
Sullivan, 376 U.S. 254, 279-80 (1964); Bentley v. Bunton, 94 S.W.3d 561, 579, 586, 590 (Tex.
2002); WFAA-TV, Inc. v. McLemore, 978 S.W.2d 568, 571 (Tex. 1998). The Camp has not made
any factual allegations in support of the third, fourth, or fifth elements.
Specifically, the Camp has not alleged that any statements (oral or written) made by Jane
Doe or John Doe about Johnny Doe were defamatory, were false, or were made with a culpable
mindset. Accordingly, the Camp has failed to allege that Jane Doe or John Doe violated any
applicable legal standard. The Camp’s motion, therefore, should be denied.
Second, there is no evidence to support the Camp’s claim that Jane Doe or John Doe
committed any acts of defamation against Johnny Doe. Put simply, the statements identified in
the Camp’s motion were not defamatory, were not false, and were not made with a culpable
mindset.
In support of its motion, the Camp references the deposition testimony of John Doe, S.A.
(a community witness), S.W. (Johnny Doe’s middle school principal), and Megan Mooney, Ph.D.
(Johnny Doe’s treating psychologist). Likewise, the Camp vaguely references an article featured
in The Houston Press. None of the referenced materials is sufficient evidence of a defamation
claim or the violation of any other legal standard.
John Doe’s testimony demonstrates that he talked to a family friend T.B. (whose own son
had attended Camp La Junta with Johnny Doe) about the fact that Johnny Doe was the victim. The
statements made during these conversations were not defamatory, were not false, were not made
4
with any culpable mindset, were not publicly disclosed, and did not injure Johnny Doe. This
evidence, therefore, does not support the Camp’s requested designation.
S.A.’s testimony reflects that S.A. determined the true identity of Johnny Doe on his own
and spontaneously shared his belief with T.B. In turn, T.B. informed John Doe about S.A.’s
statements. John Doe, in response, contacted S.A. to discuss the matter—S.A.’s own son had
attended Camp La Junta as well—and confirmed that Johnny Doe was the victim. Again, the
statements made during this conversation were not defamatory, were not false, were not made with
any culpable mindset, were not publicly disclosed, and did not injure Johnny Doe. This evidence,
therefore, does not support the Camp’s requested designation.
S.W.’s testimony reflects that, at or around the beginning of Johnny Doe’s attendance at a
new middle school, John Doe and Jane Doe shared what happened to Johnny Doe with S.W. The
parents did so in order to provide support for their son at his new school. Again, the statements
made during this conversation were not defamatory, were not false, were not made with any
culpable mindset, were not publicly disclosed, and did not injure Johnny Doe. This evidence,
therefore, does not support the Camp’s requested designation.
Dr. Mooney’s testimony reflects that, in October 2012, Johnny Doe expressed general
frustration to Dr. Mooney because Jane Doe had shared information regarding his abuse with other
people. Dr. Mooney’s notes further reflect that this parental frustration largely resolved itself
within a week, is commonplace for minor victims of sexual abuse, and is a natural causal
consequence stemming from Johnny Doe’s sexual abuse. See Deposition of Megan Mooney,
Ph.D., 76:13–24; 80:10–81:10 (Sept. 8, 2014); Progress Note dated October 24, 2014
(Mooney00062, included within Exhibit 1 to Dr. Mooney’s deposition).
5
On the other hand, Dr. Mooney’s testimony does not support a claim for defamation
because there is no evidence that these statements were defamatory, were false, or were made with
any culpable mindset. In fact, this testimony does not even reflect when the statements were made,
to whom the statements were made, or what the statements were.
Lastly, the article published by The Houston Press does not identify Johnny Doe or the Doe
Family, is not defamatory, is not false, was not made with any culpable mindset, and did not injure
Johnny Doe. Dr. Mooney’s deposition testimony establishes these points. For example, Dr.
Mooney testified as follows:
Q. Well, you were asked questions; and it was sort of implied that the publication
of this article had a negative impact on [Johnny Doe]. Did [Johnny Doe] ever tell
you that?
A. No.
Q. Did [Johnny Doe’s] parents ever tell you that?
A. No.
Q. From anything you saw or—or you observed in your treatment of [Johnny
Doe], did you ever feel that that article in any way exacerbated [Johnny Doe’s]
injuries or symptoms?
A. No. I don’t think it was ever referenced in my therapy sessions.
…
Q. Okay. In that -- now, in that article, did it mention [Johnny Doe’s] name at all?
A. Not that I recall.
Q. Did it mention his parents’ names at all?
A. I don’t believe so.
Mooney Depo., 82:4–16, 83:4–8.
Ultimately, the Camp carries the burden of demonstrating that there is some evidence to
support of its claim that Jane Doe and John Doe committed tortious acts of defamation that injured
Johnny Doe. In this case, the evidence referenced in the Camp’s motion does not support its
burden, and the Doe Family asserts that there is no evidence in support of the Camp’s position.
Accordingly, the Court should strike the Camp’s designation.
6
IV.
CONCLUSION
For the foregoing reasons, the Doe Family respectfully requests that the Court deny the
Camp’s Motion to Designate Responsible Third Parties and/or strike any such designation.
Respectfully submitted,
RUSTY HARDIN & ASSOCIATES, LLP
/s/ Bob Wynne
Rusty Hardin
rhardin@rustyhardin.com
State Bar No. 08972800
Andy Drumheller
adrumheller@rustyhardin.com
State Bar No. 00793642
Robert P. Wynne
bwynne@rustyhardin.com
State Bar No. 24060861
1401 McKinney, Suite 2250
Houston, Texas 77010-4035
(713) 652-9000
(713) 652-9800 (Facsimile)
ATTORNEYS FOR PLAINTIFF
CERTIFICATE OF SERVICE
I hereby certify that the foregoing instrument was served on all counsel of record on
June 10, 2015, pursuant to Rule 21a.
/s/ Bob Wynne
________________________________
Bob Wynne
7
TAB E
TAB F
6/30/2015 2:09:16 PM
Chris Daniel - District Clerk Harris County
Envelope No. 5881866
By: BERNADETTE LYNCH
Filed: 6/30/2015 2:09:16 PM
CAUSE NO. 2012-31192
JOHNNY DOE, PLAINTIFF § IN THE DISTRICT COURT OF
by and through his Parents, JOHN §
DOE and JANE DOE, §
§ HARRIS COUNTY, TEXAS
v. §
§
CAMP LA JUNTA 1928, L.P., et al. § 333rd JUDICIAL DISTRICT
POST-HEARING SUBMISSION OF EVIDENCE
IN SUPPORT OF OBJECTION TO
AMENDED MOTION FOR APPOINTMENT OF GUARDIAN AD LITEM
Plaintiff, JOHNNY DOE, A MINOR, by and through his parents, JOHN DOE and JANE
DOE, INDIVIDUALLY AND AS NEXT FRIENDS OF JOHNNY DOE, A MINOR (collectively,
the “Doe Family”) submits this Post-Hearing Submission of Evidence in Support of their Objection
to Defendants Camp La Junta 1928, L.P., Camp La Junta, Inc., CLJ Management Systems, L.L.C.,
and Blake Smith’s (collectively, the “Camp”) Amended Motion for Appointment of Guardian Ad
Litem. See Image Number 65339519 (May 7, 2015). The Doe Family identifies the substance of
the evidence and the bases for the submission below.
In May 2015, the Camp filed an amended motion seeking the appointment of a guardian
ad litem. Through that amended motion, the Camp contended (for a second time) that Johnny
Doe’s interests are sufficiently adverse to his parents’ interests such that the Court is legally
mandated to appoint a guardian ad litem.
The Court conducted an oral hearing on that motion on May 29, 2015. At the conclusion
of the hearing, the Court denied the amended ad litem motion. A copy of the transcript is attached
as Exhibit A.
The Camp has now filed a Petition for Writ of Mandamus with the First Circuit Court of
Appeals regarding the Court’s denial of the amended ad litem motion. The Doe Family now seeks
to formally introduce evidence referenced during the oral hearing.
During the oral hearing, counsel for the Doe Family identified the existence of a text
message sent by Johnny Doe to counsel on the evening before the hearing. See Oral Hearing
Transcript at 25 (May 29, 2015). In that text message, Johnny Doe expressed his own personal
viewpoints on the substance of the amended ad litem motion and the allegation that his interests
are adverse to his parents’ interest. Id. The Doe Family now introduces the substance of Johnny
Doe’s text message to the Court in camera through the Affidavit of Robert P. Wynne, attached as
Exhibit B.
The affidavit is being submitted in camera to the Court because it reflects confidential
information protected by the Court’s Agreed Protective Order and by the attorney-client privilege.
Given the significance of the Camp’s contention that the interests of Johnny Doe’s parents are
adverse to Johnny Doe’s interests, the Doe Family contends that it is necessary for the Court to
accept this evidence in camera (1) to preserve the privileged nature of the communication and the
anonymity of Johnny Doe, while (2) simultaneously ensuring that Johnny Doe’s interests are
sufficiently protected.
2
Respectfully submitted,
RUSTY HARDIN & ASSOCIATES, LLP
/s/ Bob Wynne
Rusty Hardin
rhardin@rustyhardin.com
State Bar No. 08972800
Andy Drumheller
adrumheller@rustyhardin.com
State Bar No. 00793642
Robert P. Wynne
bwynne@rustyhardin.com
State Bar No. 24060861
1401 McKinney, Suite 2250
Houston, Texas 77010-4035
(713) 652-9000
(713) 652-9800 (Facsimile)
ATTORNEYS FOR PLAINTIFF
CERTIFICATE OF SERVICE
I hereby certify that the foregoing instrument was served on all counsel of record on
June 30, 2015, pursuant to Rule 21a.
/s/ Bob Wynne
________________________________
Bob Wynne
3
EXHIBIT A
1
1 REPORTER'S RECORD
VOLUME 1 OF 1 VOLUME
2 TRIAL COURT CAUSE NO. 2012-31192
3
JOHNNY DOE, A MINOR, BY AND * IN THE DISTRICT COURT OF
4 THROUGH HIS PARENTS, JOHN *
DOE AND JANE DOE *
5 VS. * HARRIS COUNTY, T E X A S
*
6 *
*
7 CAMP LA JUNTA 1928, LP, *
ET AL * 333RD JUDICIAL DISTRICT
8
9 --------------------------------------------------------
10 MOTION FOR AD LITEM APPOINTMENT
11 --------------------------------------------------------
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On the 29th day of May, 2015, the Hearing on MOTION
13 FOR AD LITEM APPOINTMENT came on to be heard in the
above-entitled and -numbered cause; and the following
14 proceedings were had before the Honorable Joseph "Tad"
Halbach, Judge Presiding, held in Houston, Harris
15 County, Texas:
16 Proceedings reported by computerized stenotype
machine; Reporter's Record produced by computer-assisted
17 transcription.
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JODI MASERA, 333RD OFFICIAL REPORTER
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1 A P P E A R A N C E S:
2 MR. BOB WYNNE
Bar No. 24060861
3 Rusty Hardin & Associates, LLP
5 Houston Center
4 1401 McKinney, Suite 2250
Houston, Texas 77010
5 713.652.9000
Bwynne@rustyhardin.com
6 COUNSEL FOR PLAINTIFF
7 MR. KENT ADAMS
Bar No. 00869200
8 Lewis Brisbois Bisgaard & Smith, LLP
24 E. Greenway Plaza, Suite 1400
9 Houston, Texas 77046
713.659.6767
10 Kent.adams@lewisbrisbois.com
COUNSEL FOR DEFENDANTS
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JODI MASERA, 333RD OFFICIAL REPORTER
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1 THE COURT: We're on the record in Cause
2 No. 2012-31192, Johnny Doe, a minor by and through his
3 parents versus Camp La Junta. We are here today on the
4 Defendants' motion to appoint a guardian ad litem for
5 the minor in this case.
6 Let me hear the announcements, please.
7 MR. ADAMS: Your Honor, Kent Adams for the
8 Defendants. Ready to proceed.
9 MR. WYNNE: Bob Wynne on behalf of the
10 Plaintiffs, Your Honor.
11 THE COURT: Okay. You may proceed,
12 Mr. Adams.
13 MR. ADAMS: Thank you, Your Honor.
14 Judge, we're here today on our amended
15 motion for appointment of guardian ad litem for the
16 minor, Johnny Doe, pursuant to Rule 173.2(a)1 which
17 provides that the Court shall grant the motion if it
18 appears to the Court the next friend and Plaintiff have
19 an adverse interest.
20 In this case we have a 17-year-old minor,
21 Johnny Doe, and his guardians are his parents; they are
22 his next friends. By the way --
23 THE COURT: Let's make sure we understand.
24 There is no guardianship in place. They are next
25 friends, right?
JODI MASERA, 333RD OFFICIAL REPORTER
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1 MR. ADAMS: Yeah, correct. Yes, sir. And
2 I didn't mean guardians in the legal sense but thanks
3 for that clarification. And we are not asking for any
4 change of who the next friends are. This is merely the
5 appointment of an ad litem.
6 The evidence that I'll lay out for you very
7 briefly in a moment is that Johnny Doe wants this case
8 over and his mother doesn't; that his interest is to get
9 it behind him. His mother's interest, as she's
10 testified to, is to make sure justice was served and
11 make things right. She wants the case tried.
12 Dr. -- one of the Plaintiff's treating
13 doctors is Dr. Mooney. The records that we provided to
14 the Court last night in-camera, on January 10th of 2013,
15 Dr. Mooney said with respect to the minor: "He reported
16 feeling frustrated by lack of control he has in deciding
17 whether to accept any proposed settlements in civil
18 case. Explore his thoughts and feelings about this
19 issue. Worked with Johnny to think about other's
20 perspectives and generate possible solutions. Johnny
21 was able to develop a plan to talk with his father about
22 his thoughts and feelings. Johnny feels very strongly
23 about needing a sense of control over the situation."
24 Then from the testimony of his mother, Jane
25 Doe, which was taken back on December 17th of 2012, Your
JODI MASERA, 333RD OFFICIAL REPORTER
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1 Honor, Mrs. Doe testified on Page 187 of her deposition
2 and the question is:
3 "My question specifically is whether or not
4 you've had any discussions with any of Johnny's
5 therapists about any potential impact that this
6 litigation may have on him.
7 "Answer: That's kind of what we discussed
8 was, you know, that it may be healing for him to be able
9 to face Defendant face to face.
10 "Question: I didn't realize that was a
11 specific conversation you had with Barghi, Diane Barghi?
12 "Answer: Yes. I'm sorry. I guess I
13 wasn't real clear on that.
14 "Question: So if I understand your
15 testimony correctly from that discussion, you concluded
16 or believe that the civil litigation would actually be a
17 positive?
18 Answer from Mrs. Doe: "Yes. You know
19 that's what I believe.
20 "Question: Have any of Johnny's therapists
21 or other medical providers offered any contrary view to
22 that?
23 "Answer: I don't know that I really asked
24 them, you know. You know, part of it was we told them
25 that Johnny doesn't realize you get money from this, so
JODI MASERA, 333RD OFFICIAL REPORTER
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1 he's doing this because he feels he's helping children
2 because he knows that if he doesn't do something because
3 of what happened to him at Camp La Junta, he feels that
4 other children will get molested at La Junta because of
5 the way this was handled."
6 Skipping over to Page 189:
7 "Question: My question was, I think,
8 whether or not any of Johnny's therapists or medical
9 providers have offered a contrary view that the civil
10 litigation might not be beneficial to Johnny's progress?
11 "Answer: No."
12 The third of nine brief offers I have, Your
13 Honor.
14 The deposition of Dr. Barghi --
15 THE COURT: Let me stop you for just a
16 minute. Rule 173 as amended has drastically changed the
17 roles of guardian ad litems. In the old days,
18 particularly under a case called Bird versus Woodruff,
19 the ad litem literally supplanted the next friend and
20 was treated almost as if they were a guardian and by
21 "guardian" I mean under the probate court, although
22 another amendment to that is they had no power to
23 ultimately settle things without court approval. Just
24 like under Rule 44, a guardian ad litem has no power.
25 But just to make sure we're clear, Rule 173.1 et. seq
JODI MASERA, 333RD OFFICIAL REPORTER
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1 is an entirely different animal than it was before. Now
2 the Court has some powers to expand the roles but
3 Footnote 4 says "only in extraordinary circumstances
4 does the rule contemplate that a guardian ad litem will
5 have a broader role."
6 Even then the role is limited to
7 determining whether a party's next friend has an
8 interest adverse to the party that should be considered
9 by the Court under Rule 44. "In no event may a guardian
10 ad litem supervise or supplant the next friend or
11 undertake to represent the party by serving." That's
12 very clear.
13 So why did I do that? To lecture? No. To
14 say, counsel, exactly what is it that you're hoping
15 to -- what role are you asking this potential guardian
16 ad litem to have in this case?
17 MR. ADAMS: Act as the rule provides and
18 that is as an advisor to the Court based on the guardian
19 ad litem's interaction with the minor Plaintiff.
20 THE COURT: And advise the Court what?
21 Rule 173 contemplates there is a settlement that the
22 parties propose and that there is an adverse interest
23 with regard to the division of the settlement fees.
24 As I understand it here, we don't have
25 that. Unless what the Defendant is trying to do is
JODI MASERA, 333RD OFFICIAL REPORTER
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1 trying to get an ad litem to convince the Court that
2 there's a reasonable settlement, which I've seen before,
3 that the minor should take; but even then it begs the
4 issue, what power do I have?
5 And then finally I'll add that Plaintiff's
6 counsel and Mr. Hardin, Plaintiff's two lawyers who are
7 leading the charge here, represent the minor. They have
8 duties to the minor. And if they believe there is a
9 conflict of the type you're describing, it would seem to
10 be their duty to advise parties that maybe new counsel
11 is required -- I'm not suggesting there is.
12 So all I'm doing is coming back to this,
13 Mr. Adams, to say: What exactly are you hunting for
14 here, because I'm not sure I have the power to do it --
15 MR. ADAMS: Yes, sir.
16 THE COURT: -- even assuming it were
17 appropriate?
18 MR. ADAMS: Yes, sir. I believe it's
19 appropriate and that you have the power to do it and I
20 would cite the Court to 2006 Texas Supreme Court case
21 Land Rover versus Hinojosa. In that case it was a
22 personal injury case. When the ad litem issue came up
23 the Plaintiffs were negotiating a settlement. We've had
24 two mediations. There was not a proposed settlement on
25 the table. The parties recognize a conflict of interest
JODI MASERA, 333RD OFFICIAL REPORTER
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1 between the parents and the minor child might exist and
2 it's important to note again that the case had not
3 settled, or there was not a final settlement proposal on
4 the table.
5 THE COURT: Agreed. In fact, Rule 173
6 gives me the authority to appoint an ad litem to attend
7 a mediation, for example.
8 MR. ADAMS: Yes, sir. That's exactly --
9 and that's basically what we're looking for.
10 THE COURT: Okay. But if that happens,
11 where do we go from there? Let's assume the Court did
12 that and let's assume that a hypothetical ad litem says,
13 "Judge, I think it's in the best interest of the minor
14 for the offer that's been extended to be accepted."
15 Where do I go from there? I don't have any power to
16 force that. I have none.
17 MR. ADAMS: Well, if the ad litem were to
18 do that, then clearly there would be a conflict in the
19 positions taken by the parents and the minor; and I
20 think the Court would -- the cases would anticipate that
21 the minor's interest would have to be protected by the
22 Court at that point.
23 THE COURT: No, no, no. Show me that case.
24 I'm not aware of any such case.
25 MR. ADAMS: The Texas Supreme Court says
JODI MASERA, 333RD OFFICIAL REPORTER
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1 that "when" --
2 THE COURT: Same case?
3 MR. ADAMS: Yes, sir.
4 THE COURT: Go ahead.
5 MR. ADAMS: "When a minor is represented by
6 next friend who appears to the Court to have interest
7 adverse to the minor, the Court shall appoint a guardian
8 ad litem for that person."
9 THE COURT: And that usually means a
10 financial interest apart from that. In other words,
11 there's a conflict. Mom has -- this is a hypothetical
12 mom -- has her own personal injury claims in a car wreck
13 case, let's say, for personal injuries and so does the
14 minor and when it comes to deciding how much to settle
15 for we presume and the law presumes we need someone to
16 advise the Court, is this division in the interest of
17 the minor?
18 But I just want to repeat again, the Bird
19 v. Woodruff days are gone. The ad litem has no power to
20 act on behalf of the minor. And even under the
21 exceptions to this rule, Footnote 4 says -- or Comment
22 4, sorry, says "limited role."
23 MR. ADAMS: I agree. I agree. In KC
24 Greenhouse Patio Apartments, which is a First Circuit
25 Court of Appeals opinion from 2012, Judge Brown wrote
JODI MASERA, 333RD OFFICIAL REPORTER
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1 it, 445 --
2 THE COURT: We've had some discussions
3 about that case. Go ahead.
4 MR. ADAMS: Yes, sir. He noted that Rule
5 173 was not the correct vehicle for changing next friend
6 and we've talked about that and that's not what we're
7 here today.
8 "The guardian ad litem should be appointed
9 when it appears to the trial court that the next friend
10 has an interest adverse to the minor. The conflict need
11 not actually exist. The potential for conflict is
12 sufficient to justify the appointment of a guardian ad
13 litem."
14 Judge Brown went on to say that the "Texas
15 Supreme Court does not define what constitutes an
16 adverse interest under 173," so I agree with this Court
17 that there are some unchartered waters. But in a number
18 of recurring situations he says "the courts most
19 commonly apply the rule to adverse interests relating to
20 the division of settlement proceeds," as this Court has
21 noted.
22 THE COURT: Notice it says "division of
23 settlement proceeds." Not "acceptance" but "division."
24 MR. ADAMS: Yes, sir.
25 THE COURT: By the way, the Supreme Court
JODI MASERA, 333RD OFFICIAL REPORTER
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1 has spoken. To the extent it has, that's -- these are
2 the Supreme Court's rules --
3 MR. ADAMS: I --
4 THE COURT: -- assuming there is -- no, no,
5 no. I wasn't trying to be cute with you. You're right.
6 There hasn't been since the adoption of Rule 173 a new
7 Supreme Court opinion dealing with that other than the
8 case that says that a claim for reimbursement of the
9 minor's medical expenses is not enough to create a
10 conflict, if that's all it is.
11 But my only point is, to the extent the
12 Court has spoken, it has spoken under the comments to
13 2004.
14 MR. ADAMS: Yes, sir. And what Justice
15 Brown went on to say was that an adverse interest may
16 also arise, as you mentioned, with respect to the
17 medical expenses. That's been addressed by the Supreme
18 Court. But the opinion talks about adverse interest.
19 Now the record, which I was in the middle
20 of laying out, would like -- I have a few more offers to
21 make.
22 THE COURT: Please, please, please.
23 MR. ADAMS: I should have prefaced this --
24 THE COURT: Please do.
25 MR. ADAMS: -- will show that, I believe --
JODI MASERA, 333RD OFFICIAL REPORTER
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1 and I'm here as an officer of the court today, not as --
2 THE COURT: I respect that and I accept
3 that.
4 MR. ADAMS: That's why I'm here. And I
5 believe the Court has an opportunity here before the
6 toothpaste is out of the tube, before the identity of
7 the parties goes public, we have a public trial with all
8 the attended news media, to have a guardian ad litem
9 look at this and advise the Court on what's the best
10 interest of the young man.
11 THE COURT: Now what do I do with that?
12 MR. ADAMS: Your Honor, that's --
13 THE COURT: Tell me where my power is at
14 that point. Let's assume that I hear a settlement offer
15 that's out there, okay, on behalf of the minor. By the
16 way, just -- I need to be reminded. I was just looking
17 at this. Do the parents assert their own individual
18 claims in this case?
19 MR. ADAMS: They abandoned those other than
20 for the medical expenses.
21 MR. WYNNE: We never asserted them.
22 THE COURT: Whether you did or not. So
23 this is an even more unique situation. There is no
24 conflict. The law presumes no conflict of the usual
25 type in any event, right?
JODI MASERA, 333RD OFFICIAL REPORTER
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1 MR. ADAMS: Yes, sir. That's correct. But
2 just to correct the record, they did have their own
3 claims. We asked for IME's. Those claims were dropped.
4 But anyway, that's -- the reason I mention that was the
5 last hearing I was accused of gamesmanship, which I
6 thought was unfair and --
7 THE COURT: And, by the way, as I said, it
8 may have been. I didn't -- to the extent that I was
9 concerned about that, the more I went into that, I
10 understood what you were getting at. It's not -- it was
11 never my intent to accuse you of anything.
12 MR. ADAMS: And I didn't suggest the Court
13 did and I appreciate that, and I have a tremendous
14 amount of respect for Plaintiff's counsel.
15 Just continue with my very brief offers,
16 Your Honor. And so the point that I'm trying to make
17 with these offers as by way of a road map is that I
18 believe, as an outsider looking in, that the parents
19 love their child very, very much and they are very
20 protective of him and that's as it should be. I also
21 believe that the 17-year-old does not want a public
22 trial of this case, that he wants to put it behind him.
23 I also believe that the mother has turned this into a
24 cause, which is understandable as well, and so I think
25 that's where the conflict comes in. Her interest is in
JODI MASERA, 333RD OFFICIAL REPORTER
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1 championing the rights -- or the issue of child abuse;
2 his interest is going into his senior year in high
3 school and moving on with his life.
4 Continuing with my very brief offers, Your
5 Honor. From the deposition of Dr. Barghi, another of
6 the Plaintiff's treating healthcare providers, Page 111:
7 "Question: Then Johnny's mother reports
8 Johnny told her in Europe that I think he meant to say
9 he moved on?
10 "Answer: Yes.
11 "And that she needed to also?
12 "Answer: Yes.
13 "What did that mean?"
14 Answer by Dr. Barghi: "It just meant that
15 he -- he was trying to move past everything and that he
16 was working on moving past it. But it was hard because
17 of mom's talking about it. It's hard for him to move
18 past it.
19 "Question: To move past it meaning the
20 incident which happened at camp?
21 "Answer: Yes.
22 "Okay. And then you told Mrs. Doe that she
23 should listen to her children because Johnny cannot move
24 on if she does not?"
25 Answer from Dr. Barghi: "Yes."
JODI MASERA, 333RD OFFICIAL REPORTER
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1 Then on Page 113, again Dr. Barghi is
2 testifying from the notes, the therapist notes, and I
3 quote from Line 14: "Therapist talked to Johnny about
4 school and about the court case coming up. Johnny told
5 therapist that his mom was talking about it constantly
6 and he doesn't want to think about it anymore. He
7 talked to the therapist about wanting to move on and he
8 isn't going -- he wasn't going to choose to let it ruin
9 his life."
10 I asked: "Did I read that pretty
11 accurately?"
12 Dr. Barghi answered: "Yes."
13 Then from the deposition of Dr. Mooney, who
14 is over at DePelchin, she's also one of the minor
15 Plaintiff's treaters. Question on Page 18 Line 12:
16 "Did you say under progress note or
17 communication that you met with Johnny individually, he
18 expressed considerable frustration with his mother about
19 how much of his personal business including his abuse
20 history she has shared with other people without his
21 permission? Did I read that correctly?
22 "Answer: Yes, sir."
23 Skipping over in Dr. Mooney's deposition to
24 Page 20 Line 22:
25 "Question: Okay. You said you met with
JODI MASERA, 333RD OFFICIAL REPORTER
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1 Johnny and mother jointly, therapist, that would be
2 you."
3 We're referring to the therapist notes,
4 Your Honor.
5 "Answer: Correct.
6 "Okay. Help Johnny to express his concerns
7 to his mother about how and how much information she
8 either intentionally or accidentally shared with other
9 people. Mother responded appropriately by validating
10 Michael's concerns and saying she would try to be more
11 mindful of this in the future. She and Johnny will
12 develop a password so that he can let her know if she's
13 talked -- is talking about things that upset him in the
14 future. So that was the follow up to the prior session
15 where you said we're going to try to get everybody
16 together and work this through?
17 "Answer: Correct."
18 Further from the deposition of Dr. Mooney
19 on Page 32 Line 4:
20 "Question: Okay. In your assessment you
21 said Johnny feels very strongly about needing a sense of
22 control over the situation. He has" -- I'm sorry, I'm
23 sorry, I was just going to say "correct."
24 From Page 31 of Dr. Mooney deposition:
25 "Johnny reported feeling frustrated by a
JODI MASERA, 333RD OFFICIAL REPORTER
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1 lack of control he has in deciding whether to accept any
2 proposed settlements in civil case."
3 THE COURT: May I interrupt for just a
4 second?
5 MR. ADAMS: Yes.
6 THE COURT: How old is he?
7 MR. ADAMS: He's 17.
8 THE COURT: When will his birthday be?
9 MR. ADAMS: In April next year he'll turn
10 18.
11 THE COURT: Okay.
12 MR. ADAMS: Page 31 Line 13:
13 "Question: Now this kind of gets back to
14 what we were talking about a little earlier about
15 Johnny's personal business and so forth. That does
16 not -- isn't Johnny here telling you that he doesn't
17 feel like he has control over the settlement discussions
18 in his own lawsuit?
19 "Yes. I think that's fair."
20 By the way, I would remind the Court, which
21 the Court knows, Johnny is old enough to be charged as
22 an adult in criminal court.
23 THE COURT: No, I know. I was just asking.
24 MR. ADAMS: Yes, sir.
25 Two more offers, very brief, Your Honor.
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1 From the September 12, '11 records of
2 Dr. Forrester, the third of the Plaintiff's treaters
3 that I've brought evidence to you today on that.
4 In that progress note Dr. Forrester says:
5 "When mom left Johnny" -- meaning from the joint session
6 in her therapy session -- "Johnny just wanted to talk.
7 Therapist talked to him about school and about the court
8 case coming up. He told therapist that his mom is
9 talking about it constantly and he doesn't want to think
10 about it anymore. He told therapist about wanting to
11 move on and he wasn't going to choose to let it ruin his
12 life."
13 And then from Dr. Forrester's records of
14 8-15-11: "Mom reports Johnny told mom in Europe that
15 she had moved on and she needs to also. Therapist told
16 mom that she should listen to her children because he
17 can't move on if she does not."
18 So, Your Honor, the point of all that
19 testimony is to show that while there may not be adverse
20 interest here about money, and I don't think there are,
21 there clearly are adverse interests about the purpose
22 and goals of this litigation. And I say this with all
23 due respect because these are all good people involved
24 in this case, Your Honor, but the Plaintiffs, in
25 particular Mrs. Doe, I believe, has an agenda and it's
JODI MASERA, 333RD OFFICIAL REPORTER
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1 about a cause here that she's taken up, a cause
2 against --
3 THE COURT: Let me ask you something.
4 Let's assume that we wait until April and he turns 18
5 and he decides he's got a cause. Nothing wrong with
6 having a cause per se, is there?
7 MR. ADAMS: There's not, but the testimony
8 that you've heard, Your Honor, is that he doesn't. He
9 wants to move on.
10 THE COURT: No, I heard that part. I just
11 want to make sure, you keep saying "it's a cause." I
12 mean, another way to look at it -- well, let me ask a
13 question: Have you received a counter -- I don't want
14 to discuss any numbers --
15 MR. ADAMS: I understand.
16 THE COURT: -- not in the least. I'm not
17 here to decide that. Have the Plaintiffs ever made a
18 settlement offer to you-all?
19 MR. ADAMS: We've had settlement
20 discussions --
21 THE COURT: That's not what I asked. I
22 want to say it again.
23 MR. ADAMS: Yes.
24 THE COURT: So it looks like there is a
25 position at which the next friends are willing to
JODI MASERA, 333RD OFFICIAL REPORTER
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1 resolve this matter and not to pursue a cause, correct?
2 MR. ADAMS: Well, the only way I can answer
3 that fully is to -- not talk about money, because
4 there's a condition that's attached to the settlement.
5 I won't describe that. But the condition would be
6 considered a poison pill that is not related to money.
7 And so in that condition --
8 THE COURT: Excuse me. No, that's
9 appropriate for you to bring that up. Okay.
10 MR. ADAMS: So that's --
11 THE COURT: And are you saying -- I'm not
12 trying to get into the details, but has that -- have we
13 ever reached a situation where your client has made a
14 counter that was -- that came closer in terms of dollars
15 and said "but this is contingent on removing that
16 condition?" In other words, I don't know where we go on
17 that.
18 MR. ADAMS: Yes, sir.
19 THE COURT: I'm trying to be respectful of
20 you, counsel, and your clients; but how do I know this
21 isn't just about money. It just isn't about your side
22 saying it should be reasonable for them to take our
23 dollars in X figures and their response is X with three
24 more zeros behind it, or whatever it is. I'm not trying
25 to pick zeros.
JODI MASERA, 333RD OFFICIAL REPORTER
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1 And I'm not suggesting that in this case.
2 I do not suggest that you've brought this motion in bad
3 faith. Nothing. But I had a case tried last calendar
4 year where it was all about the dollars. The Defendants
5 thought it was unreasonable that they could turn it
6 down, okay? I will not tell you what happened in the
7 case but that's the risk that next friends take, isn't
8 it?
9 MR. ADAMS: Judge, this isn't about the
10 dollars.
11 THE COURT: Okay.
12 MR. ADAMS: And, Judge, I have two grown
13 children. I've raised two children. One of them got
14 married recently and the other one is going to get
15 married. I look at this as a father, as an advocate, as
16 a lawyer, all those things --
17 THE COURT: How do I know that -- if they
18 have made an offer, a counter, dollars; in other words,
19 they haven't said under no circumstances are we settling
20 this matter, we're going to try it so the public hears
21 it. That's what I was trying to get to. Now what
22 you've said is, "Judge, they've attached the
23 non-monetary provision that you believe is a poison
24 pill" and I would assume what you're saying is it falls
25 back into that category of pursuing a cause, is that
JODI MASERA, 333RD OFFICIAL REPORTER
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1 right?
2 MR. ADAMS: I would say that, yes, sir.
3 But to answer your question, there's a real, real, real
4 simple answer to your question and that is to appoint a
5 guardian ad litem.
6 THE COURT: But what would that guardian --
7 MR. ADAMS: Yes, sir.
8 THE COURT: So where does that guardian ad
9 litem take us?
10 MR. ADAMS: The guardian ad litem would
11 report back to the Court, in my opinion ideally, whether
12 or not he believes or she believes that the child's
13 interests are being fully advanced or properly advanced
14 by the parents; and if not, then I would think that
15 that's information that the Court would at least share
16 with Plaintiff's counsel so they could evaluate their
17 position in that situation.
18 THE COURT: Whoa. Now, let's back up.
19 Plaintiff's counsel already has duties to this minor.
20 Plaintiff's counsel is aware, I assume, of the same
21 evidence you just gave me. Plaintiff's counsel has a
22 duty and they are well reputed. These are experienced
23 Plaintiff's counsel. They understand where their duties
24 lie and they understand the tricky boundaries that might
25 be there. In any case, by the way, particularly in the
JODI MASERA, 333RD OFFICIAL REPORTER
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1 case you've described. So why aren't they already being
2 represented in that sense?
3 MR. ADAMS: Well, then, why would the Court
4 appoint an ad litem to look at a settlement? I mean,
5 you're just talking about where we are on a continual.
6 If we came to you with settlement --
7 THE COURT: No, no, no. You don't
8 understand what I'm telling you. When you've got the
9 settlement, the law presumes that issue and the Court --
10 and I'm here to be advised. In this case we don't have
11 a deal, okay? It's not like there's a deal that people
12 have reached and they want me to bless it and approve
13 it, as Rule 44 requires.
14 What I'm saying is, if Plaintiff's counsel
15 views the type of conflict you believe it has risen to,
16 then it would seem to me that Plaintiff's counsel would
17 have a duty, certain duties professionally to do
18 something and so far they haven't.
19 MR. ADAMS: Well, Your Honor, let me just
20 say that there have been discussions over a long period
21 of time between the two law firms about this very issue,
22 and I'm bringing this motion in light of those
23 discussions.
24 THE COURT: Okay. I got it.
25 Response?
JODI MASERA, 333RD OFFICIAL REPORTER
25
1 MR. WYNNE: I'm going to do my best to stay
2 calm, Judge. I think you saw the response. It was very
3 mild.
4 There's a whole lot I could say. I don't
5 really think I need to, but I will try and hit on some
6 of your points. There's nothing for an ad litem to do
7 even if one was merited or warranted in this case.
8 There's no settlement on the table. We've mediated this
9 case twice. They know what the demands are.
10 The poison pill that Mr. Adams spoke of,
11 that came from Johnny. He's the one who wants that.
12 He's the one who is controlling the language of that
13 non-monetary component. So I don't even understand how
14 that could possibly create an adverse interest. But if
15 we took everything that they've said, that doesn't even
16 get me close to an adverse interest between mom and son.
17 Those notes that were referenced, 2011,
18 2012, the last three years, know what they've done?
19 They've worked through those issues. They're continuing
20 to work through those issues. I've spoken to the
21 doctors countless times. I've spoken to Johnny
22 countless times. I got a text from him last night --
23 that I could show you in-camera; I could give you my
24 phone -- that lays out his position precisely. There is
25 no conflict.
JODI MASERA, 333RD OFFICIAL REPORTER
26
1 The parents have done nothing to push him
2 one way or the other. There's a deposition testimony
3 from his doctor specifically on that point. I don't
4 want to get too emotionally into it right now. There's
5 no basis for this, Judge, and I don't really want to --
6 THE COURT: Let me summarize what you just
7 said and this is what I'm taking from what you said.
8 Judge, assuming you were to glean what defense counsel
9 says you should glean from the citations to the records
10 that he gave you, circumstances have changed such that
11 those issues don't exist anymore.
12 MR. WYNNE: That's correct, Your Honor.
13 THE COURT: One. And two, as your duty of
14 counsel to the minor, you have evaluated the situation
15 and you feel -- you feel confident that this case is
16 proceeding in a way that not only the next friends wants
17 but the 17-year-old minor wants.
18 MR. WYNNE: That's absolutely right, Judge.
19 My duties run to Johnny. He knows that. I know that.
20 Rusty knows that. The parents know that. I think
21 that's been clear. So, yes.
22 THE COURT: The motion is denied.
23 MR. ADAMS: Thank you, Your Honor.
24 Do you need an order, Judge?
25 THE COURT: Yes.
JODI MASERA, 333RD OFFICIAL REPORTER
27
1 (Discussion off the record)
2 THE COURT: We're back on the record.
3 Mr. Adams referred to a number of records in this
4 hearing and specifically talked about in-camera
5 documents that he produced to the Court yesterday, which
6 would be the 28th.
7 MR. ADAMS: Yes, sir.
8 THE COURT: I have those here at the bench,
9 and I have handed them -- just handed them to Mr. Adams
10 to go through them and this envelope that I'm holding
11 is, in fact, those very documents, right?
12 MR. ADAMS: That's correct.
13 THE COURT: And I continue to hold them
14 in-camera. And what I'm going to do right now is to
15 sign my name on them and date this, 5-29-15. If there
16 is a review of this matter prior to a final resolution
17 of this case, final judgment in this case, I am holding
18 those and will continue to in-camera and they will be
19 properly delivered to any court that is reviewing this
20 on a discretionary basis. I think that covers what you
21 needed me to. If for some reason it doesn't, Mr. Adams,
22 I have continuing jurisdiction over this matter and you
23 can come right back and we can make sure. But that's
24 the safest way to protect them in-camera is to continue
25 to leave them in-camera.
JODI MASERA, 333RD OFFICIAL REPORTER
28
1 MR. ADAMS: I agree and I appreciate that
2 very much.
3 THE COURT: Is that okay?
4 MR. WYNNE: That's okay with the
5 Plaintiffs.
6 THE COURT: I've got them. We're off the
7 record.
8 MR. WYNNE: If there is an appeal --
9 THE COURT: Oh, back on the record.
10 MR. WYNNE: If there is an appeal taken to
11 the next level, we also filed our evidence in-camera. I
12 would ask that that would be delivered, as well.
13 THE COURT: Wait a minute. Is this what
14 you are referring to?
15 MR. WYNNE: This is, Your Honor.
16 THE COURT: Okay. So likewise, I have
17 yours and I am going to date this and sign it, the
18 outside of the envelope, and I have them both if it
19 should go to any court of appeals or other court that
20 might review this. All right.
21 MR. ADAMS: Thank you, Your Honor.
22 THE COURT: We're off the record.
23 (Proceedings concluded)
24
25
JODI MASERA, 333RD OFFICIAL REPORTER
29
1 THE STATE OF TEXAS
COUNTY OF HARRIS
2
3 I, Jodi Masera, Official Court Reporter in and for
4 the 333rd District Court of Harris County, State of
5 Texas, do hereby certify that the foregoing contains a
6 true and correct transcription of all portions of
7 evidence and other proceedings requested in writing by
8 counsel for the parties to be included in this volume of
9 the Reporter's Record, in the above-styled and numbered
10 cause, all of which occurred in open court or in
11 chambers and were reported by me.
12 I further certify that this Reporter's Record of
13 the proceedings truly and correctly reflects the
14 exhibits, if any, admitted, tendered in an offer of
15 proof or offered into evidence.
16 I further certify that the total cost for the
17 preparation of this Reporter's Record is $217.50 and was
18 paid/will be paid by LEWIS BRISBOIS BISGAARD & SMITH,
19 LLP.
20 WITNESS my hand this the 5th day of June, 2015.
21 /s/ Jodi Masera ___
Jodi Masera, Texas CSR No. 4273
22 Expiration Date: 12/31/16
Official Court Reporter
23 333rd District Court
Harris County, Texas
24 201 Caroline, 14th Floor
Houston, Texas 77002
25 (713)368-6485
JODI MASERA, 333RD OFFICIAL REPORTER
EXHIBIT B
Filed in camera
TAB G
CAUSE NO. 2012 - 31192
JOHNNY DOE, PLAINTIFF by and § IN THE DISTRICT COURT OF
Through his Parents, JOHN DOE §
and JANE DOE §
Plaintiff, §
§
V. § HARRIS COUNTY, TEXAS
§
CAMP LAJUNTA 1928, LP., and §
BLAKE SMITH §
Defendants. § 333rd JUDICIAL DISTRICT
DEFENDANTS’ OBJECTION AND MOTION TO STRIKE PLAINTIFFS’ POST-HEARING SUBMISSION
OF EVIDENCE
Defendants Camp LaJunta 1928 L.P., Blake Smith, Camp LaJunta, Inc., and CLJ
Management Systems, L.L.C. (hereinafter collectively referred to as “Defendants”), file this
Objection and Motion to Strike Plaintiffs’ Post-Hearing Submission of Evidence, and would show
the Court as follows:
As stated in Plaintiffs’ Motion, Defendants asked this Court to appoint a guardian ad litem
pursuant to Texas Rule of Civil Procedure 173 for minor Plaintiff Johnny Doe. All evidence in
support of Defendants’ motion was submitted in camera to this Court, and this Court has stated that
it will continue to hold such evidence in camera.1 Plaintiffs filed a response objecting to
appointment of a guardian ad litem and likewise attached evidence submitted in camera. The Court
conducted an evidentiary hearing on May 29, 2015, in which it admitted evidence, in camera, heard
arguments of counsel and orally denied Defendants’ Amended Motion for Appointment.2 An Order
signed that day stated that the Court denied the Amended Motion after “having analyzed the law,
1
See Exhibit A attached to Plaintiffs’ Post-Hearing Submission (Hearing Transcript pp. 27-28).
2
Id. at p. 26
4833-1873-4629.1 1
reviewed the facts, and heard the argument of counsel.” Currently, a Petition for Writ of Mandamus
is pending in the First Court of Appeals, and it is necessary for this Court to preserve the integrity of
the record for appellate review.
Plaintiffs now wish to ex post facto introduce evidence “referenced during the oral hearing”3
but not offered nor admitted, and neither seen nor considered by the Court when it ruled. The
transcript clearly reflects that this tardily proffered evidence was not offered in to evidence during
the hearing, though Plaintiff’s counsel claimed during the hearing, on the record, that it both existed
and was on his person. The referenced “evidence” was not offered or viewed by the Court before it
ruled.4 Because the purported evidence was not proffered, Defendants had no opportunity to object
to the putative evidence, nor to cross examine any witness with respect to such evidence. This post
ruling evidence was not part of the proceedings and does not properly belong in the record of the
Mandamus proceeding. Plaintiffs’ attempt to alter the record before it is sent to the Court of Appeals
is without merit.
Pursuant to the Texas Rules of Appellate Procedure, a record should contain “a properly
authenticated transcript of any relevant testimony from any underlying proceeding, including any
exhibits offered in evidence, or a statement that no testimony was adduced in connection with the
matter complained.”5 Plaintiffs did not tender the late evidence as an exhibit; it is not part of the
record and its omission is not a mere clerical error for the clerk’s correction.
Moreover, given the procedural status of this matter, now pending before the First Court of
Appeals, the introduction of any additional evidence in the record should be governed by the Rules
3
Plaintiffs’ Post-Hearing Submission of Evidence, p. 2 (emphasis added).
4
Exhibit A attached to Plaintiffs’ Post-Hearing Submission (Hearing Transcript pp. 25-26).
5
Tex. R. App. P. 52.7(a)(2)(emphasis added).
4833-1873-4629.1 2
of Appellate Procedure, which expressly provide a mechanism for supplementing the record.
Pursuant to Rule 52.7(b) “[a]fter the record is filed6, relator or any other party to the proceeding may
file additional materials for inclusion in the record.” However, the Plaintiffs must first meet their
burden of proof to have the late evidence supplemented and considered by the Court of Appeals.7
The attempted inclusion of this additional material at the trial court level, after the Court ruled and
while the mandamus is pending before the First Court of Appeals, however, is not a viable option.
Inclusion of this late evidence in the record would not accurately reflect the proceedings in this
Court and would instead create a false record for the Court of Appeals. There is nothing in the record
to indicate the purported evidence is self-authenticating. TRE 902. Moreover, should Plaintiffs
request be granted, the evidence will be introduced into the record without affording Defendants an
the opportunity review the purported evidence, to object to its introduction, to cross-examine the
author of the purported evidence, or to cross examine defense counsel who submitted an affidavit
purporting to authenticate the alleged evidence.
Finally, it is worth noting that Plaintiffs contend that this evidence is protected by the
attorney-client privilege. In essence, Plaintiffs seek to provide evidence to benefit their arguments to
the Court of Appeals (as this Court has already ruled), while still preserving their privilege of
confidential communications. This is the epitome of the “sword and shield” doctrine. While
Plaintiffs can certainly assert privileges clothing evidence it seeks to exclude, Plaintiffs cannot
6
As the record has not been filed in the First Court of Appeals at this time, due to the in camera
nature of the underlying exhibits, this not only improperly being filed in this Court, but is also
premature. Once the record is requested by the Court of Appeals and submitted, Plaintiffs may then
move the Court of Appeals to supplement with additional evidence.
7
See In re Cervantes, 300 S.W.3d 865 (Tex. App. – Waco 2009, orig. proceeding)(applying the
“unusual circumstances” test to evaluate a request to supplement the record in a mandamus
proceeding).
4833-1873-4629.1 3
assert privileges to evidence it seeks to admit, while simultaneously seeking affirmative relief based
on the same information.8 “When a party uses the privilege as a sword rather than a shield, he waives
the privilege.”9 If Plaintiffs are allowed to alter the record with the late evidence, it will, by necessity
waive such privilege and Defendants will be entitled to discovery on the underlying communications
– including deposing the purported author of the evidence (Johnny Doe) and recipient (Plaintiff’s
attorney Bob Wynne) of the communication. The provenience of this late evidence has not been
established, and additional discovery would be necessary for Defendants to properly prepare their
response and defenses, should the Court be considering granting Plaintiffs’ request.
Defendants request the Court deny Plaintiffs’ Motion and strike this late evidence, and
require Plaintiffs to follow the Texas Rules of Civil Procedure, Texas Rules of Evidence, and the
Texas Rules of Appellate Procedure, if they chose to continue to seek introduction of post-hearing
purported evidence.
WHEREFORE, PREMISES CONSIDERED, Defendants request that for the reasons stated
herein, the Court strike or deny submission of the evidence attached as Exhibit B to Plaintiffs’ Post-
Hearing Submission of Evidence in Support of Objection to Amended Motion for Appointment of
Guardian ad Litem.
8
See Marathon Oil Co. v. Moye, 893 S.W.2d 585, 590 (Tex. App.—Dallas 1994, orig.
proceeding)(emphasis added)(“Waiver based on offensive use of a privilege applies to confidential
attorney-client communications.”).
9
Id.
4833-1873-4629.1 4
Respectfully submitted,
LEWIS BRISBOIS BISGAARD & SMITH, LLP
/s/ Kent M. Adams
KENT M. ADAMS
State Bar Number 00869200
Kent.adams@lewisbrisbois.com
SARAH M. DAVIS
State Bar Number 24031998
Sarah.davis@lewisbrisbois.com
KRISTIE E. JOHNSON
State Bar Number 24038382
Kristie.johnson@lewisbrisbois.com
24 East Greenway Plaza, Suite 1400
Houston, Texas 77046
(713) 659-6767 Telephone
(713) 759-6830 Facsimile
ATTORNEYS FOR DEFENDANTS
CAMP LAJUNTA 1928, LP, BLAKE SMITH,
CLJ MANAGEMENT SYSTEMS, LLC AND
CAMP LAJUNTA, INC.
4833-1873-4629.1 5
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a true and correct copy of the above and foregoing Objection And
Motion To Strike Plaintiffs’ Post-Hearing Submission Of Evidence has been served on the following
by electronic service on this 1st day of July, 2015.
Rusty Hardin & Associates, LLP
Rusty Hardin
Andy Drumheller
Robert P. Wynne
5 Houston Center
1401 McKinney, Suite 2250
Houston, Texas 77010
/s/ Kent M. Adams
KENT M. ADAMS
4833-1873-4629.1 6
TAB H
in Re Camp La Junta 1928, LP, Blake Smith, Camp La Junta, Inc., CLJ Management Systems, L.L.C.
Combined Opinion