# in Re Camp La Junta 1928, LP, Blake Smith, Camp La Junta, Inc., CLJ Management Systems, L.L.C. > Texas Court of Appeals, 1st District (Houston) · July 6, 2015 URL: https://www.frixlaw.com/law-library/cases/4061415 ## Case - **Court:** Texas Court of Appeals, 1st District (Houston) - **Decided:** July 6, 2015 - **Precedential status:** Published - **Opinion:** Opinion - **Cited by:** 0 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/4061415 ## Opinion text 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 [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/4061415. Public record. Not legal advice.