Motion for Summary Adjudication in JOHN DOE I vs. THE ANDERSON PRIVATE SCHOOL, et al| Trellis.Law

On June 24, 2015 a Motion,Ex Parte was filed involving a dispute between Doe I, John, and Anderson, Alexander A., Anderson, Levonna C., Anderson, William C., The Anderson Private School, for OTHER PERSONAL INJURY in the District Court of Dallas County.

Preview
FILED
DALLAS COUNTY
4/7/2016 10:04:14 PM
FELICIA PITRE
DISTRICT CLERK

Cause No. DC-15-07174

John Doe I, Individually and as § In the District Court
Next Friend of John Doe II, a Minor, §
§
Plaintiffs, §
§
v. §
§ Dallas County, Texas
The Anderson Private School, §
William C. Anderson, Individually, §
LeVonna C. Anderson, §
Individually, Alexander A. §
Anderson, Individually, Ripley §
Entertainment, Inc., and Jim §
Pattison U.S.A., Inc., §
§
Defendants. § 44th Judicial District

Defendants LeVonna Anderson and William Anderson’s Response to
Plaintiff John Doe I’s Motion for Partial Summary Judgment
and No-Evidence Summary Judgment

To the Honorable Judge of said Court:

Plaintiff John Doe I’s Motion for Partial Summary Judgment, which was filed with

the Court on March 24, 2016, should be denied because:

1. John Doe I has failed to conclusively establish as a matter of law that no genu-

ine issue of material fact exists with respect to the essential elements of his

defamation claims against LeVonna and William Anderson.

2. The Anderson Defendants are fully protected by statutory immunity and ab-

solute and qualified privileges applicable to the alleged defamatory state-

ments, and they have also produced evidence herein to raise fact issues suffi-

Defendants’ Response to Plaintiff’s Motion for Partial Summary Judgment Page 1
#1242390
1 of 68
cient to defeat summary judgment in John Doe I’s favor as to their affirmative

defenses of statutory immunity and privilege.

3. John Doe I’s No-Evidence Motion should be denied in its entirety because a

no-evidence motion is premature. An adequate time for discovery has not

passed. In the alternative, the Anderson Defendants move for continuance on

the consideration of Plaintiff’s No-Evidence Motion for Summary Judgment.

In opposition to John Doe I’s Motion, the Anderson Defendants would show the

Court as follows:

I. Factual Background

This case arises from a false allegation of sexual assault made against Alexander

Anderson. It is undisputed that subsequent to the allegation, investigations were con-

ducted by law enforcement and an Agency of the State of Texas. Defendants LeVonna

and William Anderson were questioned during the course of that investigation, and

have now been sued for statements allegedly made during those interviews. See, Exhibit

A attached hereto and incorporated by reference, Affidavit of LeVonna C. Anderson

[29-31] 1; Exhibit B attached hereto and incorporated by reference, Affidavit of William

Anderson[33-35]. Contrary to John Doe I’s assertions, LeVonna and William Anderson

did not “systematically and methodically [make] up and [publish] horrible defamatory

lies about John Doe I to assassinate his character and reputation in an attempt to un-

dermine his credibility.” John Doe I has not substantiated that allegation with any of the

1 For the Court’s convenience, Defendants refer to the evidence by the page number of this entire
document according to the pagination at the bottom center of each page, using the notation [page num-
ber].

Defendants’ Response to Plaintiff’s Motion for Partial Summary Judgment Page 2
#1242390
2 of 68
summary judgment evidence attached to his Motion for Partial Summary Judgment.

Rather, John Doe I’s summary judgment evidence shows that he is suing LeVonna and

William primarily for comments to a police officer named Officer Brad Makovy and a

Texas Department of Family and Protective Services Child-Care Licensing investigator

named Sandra King during their investigations into John Doe I’s complaint of sexual

assault by the Andersons’ son and school employee Alexander. There is no evidence to

establish that LeVonna or William were lying when they spoke to these investigators, or

that they knew that their comments to the investigators were false, or even that the

statements are in fact false. All of the statements the Anderson Defendants communi-

cated to Officer Makovy and Sandra King were made in good faith to assist with the in-

vestigations. Ex. A [30]; Ex. B [34].

II. Arguments and Authorities

A. Standard of Review

Plaintiff John Doe I’s Motion for Partial Summary Judgment should be denied be-

cause John Doe I has not proven that he is entitled to summary judgment as a matter of

law. By seeking summary judgment, John Doe I is essentially seeking a trial on paper

using only those documents and materials attached to his Motion. As a result, John Doe

I bears the burden of proof to establish there is no genuine issue of material fact for the

jury to consider at the trial of this cause based on such evidence, and he must prove

each element of his slander cause of action against each defendant as a matter of law.

Neely v. Wilson, 418 S.W.3d 52, 59 (Tex. 2013). In addition, the Anderson Defendants can

defeat Plaintiff’s Motion for Summary Judgment by establishing a fact issue as to their

Defendants’ Response to Plaintiff’s Motion for Partial Summary Judgment Page 3
#1242390
3 of 68
affirmative defenses. Kirby Explor. Co. v. Mitchell Energy Corp., 701 S.W.2d 922, 926 (Tex.

App.--Houston [1st Dist.] 1985, writ ref'd n.r.e.).

The no-evidence portion of Plaintiff’s Motion, found solely in footnote 12 of the Mo-

tion, should be disregarded as premature. Although this case has been on file with the

Court since June 2015, the defamation claims against the Anderson Defendants have on-

ly existed since December 2015, less than six months. Based on an agreement of the par-

ties, the discovery period does not end until August 12, 2016, and the dispositive mo-

tion deadline is August 26, 2016. In addition, the Anderson Defendants had not even

pleaded truth as an affirmative defense prior to the filing of John Doe I’s Motion; an ad-

equate time for discovery on an unpleaded affirmative defense has not passed. To the

extent John Doe I is attempting to force the Anderson Defendants to marshal their evi-

dence with respect to the truth of the statements made by them, it is premature to im-

pose such an evidentiary burden on the Anderson Defendants. Tex. R. Civ. P. 166a(i).

Because an adequate time for discovery has not passed, John Doe I’s no-evidence com-

ponent to his summary judgment motion is improper and should not be considered by

the Court at this time.

In the alternative, and without waiver of their foregoing objection, Defendants re-

spectfully move for a continuance with regard to the No-Evidence portion of the Mo-

tion. Substantial discovery remains to be completed, including depositions, further

written discovery, as well as the possible filing and hearing of motions relating to dis-

covery heretofore withheld by the Plaintiff. Such continuance is not sought solely for

Defendants’ Response to Plaintiff’s Motion for Partial Summary Judgment Page 4
#1242390
4 of 68
the purposes of delay, but so that justice may be done. See, Exhibit C attached hereto,

Affidavit of Rocky Feemster [37-38].

B. Preliminary arguments pertaining to certain categories of the allegedly defam-
atory statements at issue in Plaintiff’s Motion.

1. Statement of Opinion. Defendants would show that the only allegedly defama-

tory statement attributed to William Anderson is an opinion rather than a statement of

fact, and as explained herein, is not actionable as defamation or slander.

2. Statements of Drug Use. Most of the comments attributed to LeVonna make

some reference to John Doe I’s drug use. John Doe I admitted in his deposition that he

has consumed marijuana, that he has possessed marijuana when John Doe II was pre-

sent with him, and he consumed marijuana “on occasion” during his marriage to John

Doe II’s mother. See, Exhibit H to Plaintiff’s Motion, at 58:4-6; see also, Exhibit H attached

hereto, excerpts from the deposition transcript of John Doe I, at 52:15-22[67], 53:12-16

[68]. Evidence of the scope and extent of John Doe I’s drug use or abuse has not yet been

fully developed in discovery by the defendants, who were unable to even get an answer

to questions about John Doe I’s usage of prescription medications at John Doe I’s depo-

sition. Ex. H at 6:15-20 [66]. Furthermore, as explained herein, rather than proving as a

matter of law that these statements about John Doe’s drug usage were actually false and

known by LeVonna to be false, John Doe I merely relies on a “presumption of falsity”

that should not apply to John Doe I’s Motion or to defamation law at all. John Doe I also

relies on conclusory statements by two character witnesses who do not even live in the

Defendants’ Response to Plaintiff’s Motion for Partial Summary Judgment Page 5
#1242390
5 of 68
same metropolitan area as John Doe I and do not see or communicate with John Doe I

on a daily basis.

A summary judgment in John Doe I’s favor is improper with respect to any com-

ments about John Doe I’s drug usage, in addition to the fact that such statements are

subject to the Anderson Defendants’ affirmative defenses of privilege and statutory

immunity.

Unpleaded statements. Two of the allegedly defamatory statements attributed to

LeVonna Anderson in the Motion were not pleaded and therefore cannot support

summary judgment in Plaintiff’s favor. John Doe I did not plead a slander or defama-

tion claim against LeVonna Anderson based on the statement that “John Doe I is a liar.”

See, Plaintiffs’ Second Amended Petition, currently on file with the Court. John Doe I

also did not plead a slander or defamation claim against LeVonna Anderson based on

the statement that “John Doe I was smoking marijuana in the parking lot at Ripley’s Be-

lieve It or Not.” Id. Accordingly, Plaintiff is not entitled to summary judgment on any

cause of action related to those allegedly defamatory statements.

Instead, Plaintiff specifically alleges that the defamatory statements for which he

seeks recovery include statements that John Doe I is a drug addict, daily drug user, an

alcoholic, a past drug dealer and that he suffers from paranoia. Id. Any judgment of the

Court must conform to the pleadings; a plaintiff should not be granted judgment on an

unpleaded claim unless such claim is tried by consent. Tex. R. Civ. P. 301; Hartford Fire

Ins. v. C. Springs 300, Ltd., 287 S.W.3d 771, 779-80 (Tex. App. — Houston [1st Dist.] 2009,

pet. denied). LeVonna Anderson does not consent to the trial by summary judgment

Defendants’ Response to Plaintiff’s Motion for Partial Summary Judgment Page 6
#1242390
6 of 68
motion of these unpleaded claims, and consequently summary judgment should be de-

nied with respect to defamation based on these alleged statements.

Without waiver of this objection, LeVonna nevertheless herein responds to John Doe

I’s Motion with respect to the statement that “John Doe I is a liar” to preserve her argu-

ments. John Doe I has stated in this lawsuit and to others that Alexander Anderson sex-

ually assaulted John Doe II in a seven-minute timeframe while they were together at a

public place. See, Exhibit D attached hereto, a true and correct copy of case notes from

Grand Prairie Police Department marked as Exhibits 47 and 66 in the shared exhibits,

for 11/14/14 (identifying seven-minute window) [41]. LeVonna does not believe the as-

sault occurred, and thus offered an opinion based on the fact that Plaintiff was saying

untrue things about her son. She certainly did not have any information that tended to

show John Doe I was not lying about her son. Ex. A [29-31]. Consequently, a genuine

issue of material fact exists with respect to whether or not the statement that John Doe I

is a liar is or is not false.

John Doe I and John Doe II have both sued Alexander Anderson for assaulting John

Doe II at the Ripley’s Believe It or Not! on October 31, 2014. John Doe II was inter-

viewed at least two times during the course of the Grand Prairie Police Department’s

investigation, and in one interview, John Doe II completely denied being touched inap-

propriately by anyone at any time. Ex. D at Forensic Interview on November 13, 2014

[40-41]; Ex. F attached hereto, excerpts from deposition transcript of Sandra King, at

47:5-48:7 [56]. The Grand Prairie Police Department closed the investigation as un-

founded. Ex. D at Notes dated 02/05/15 [44]; Ex. E attached hereto, excerpts of deposi-

Defendants’ Response to Plaintiff’s Motion for Partial Summary Judgment Page 7
#1242390
7 of 68
tion transcript of Brad Makovy, at 68:8-13 [47]. The Dallas County District Attorney

chose not to pursue criminal charges against Alexander Anderson on the grounds that

it appeared to the police that John Doe II had been coached to make certain statements

during the investigation. Ex. D at Notes dated 02/05/15 [44]. In addition, the Depart-

ment of Family Protective Services, which also investigated the abuse allegation, ruled

out abuse and neglect and concluded there was no risk to children at the Anderson

School. Ex. F at 31:23-32:1 [55]; 59:20-60:2 [57]; Ex. G attached hereto, a true and correct

copy of excerpt from the Child-Care Licensing Report marked as Ex. 69 in shared exhib-

its [63]. As a result there is ample circumstantial evidence that the misrepresentations

made about Alexander Anderson were not innocently made by Plaintiff, and thus evi-

dence that Plaintiff has misrepresented the facts repeatedly.

The claims against Alexander Anderson are not at issue in John Doe I’s Motion, but

the truth or falsity of those allegations is a critical component to John Doe I’s dispositive

motion as to his defamation claims against LeVonna and William Anderson. Unless

John Doe I proves as a matter of law that Alexander Anderson did in fact commit a sex-

ual assault on John Doe II, a fact issue exists as to whether he was a liar for making such

statements about Alexander. And, whether the sexual assault occurred at all is a ques-

tion for the jury, and thus a fact issue exists as to the truth or falsity of the statement

that “John Doe I is a liar” until and through trial.

In addition, John Doe I can’t ultimately prove he is not a liar through a motion for

summary judgment; his credibility is solely within the province of the jury as factfinder.

Defendants’ Response to Plaintiff’s Motion for Partial Summary Judgment Page 8
#1242390
8 of 68
Consequently, and as explained further herein, John Doe I’s Motion for Summary

Judgment should be denied in its entirety.

A. Plaintiff wholly failed to produce any evidence to support the negligence ele-
ment of his defamation claims, and consequently the Motion should be denied
in its entirety.

A defamation plaintiff must prove as a matter of law that the defendant (1) pub-

lished a statement (2) that was defamatory concerning the plaintiff (3) while acting with

negligence regarding the truth of the statement if the plaintiff is a private party, which

John Doe I is. WFAA-TV, Inc. v. McLemore, 978 sdd 568, 571 (Tex. 1998). John Doe I of-

fered no evidence whatsoever to support the third element of his defamation claims

against either of the Anderson Defendants. To prove negligence, the plaintiff must

prove the defendant knew or should have known the statement was false, and the con-

tent of the publication would warn a reasonably prudent person of its defamatory po-

tential. Considering the elements as presented in the jury charge questions at the end of

Plaintiff’s Motion, to prove negligence, John Doe I must establish that the Anderson De-

fendants knew or should have known, in the exercise of ordinary care, that their state-

ments were false and had the potential to be defamatory.

But Plaintiff offers no evidence to support his conclusion that the Anderson Defend-

ants knew or should have known their statements were false or that a reasonably pru-

dent person under the same or similar circumstances would have been warned of de-

famatory potential by the content and circumstances of the allegedly defamatory state-

ments. Plaintiff’s contention that the Anderson Defendants knew they were telling lies

merely because they were making up the lies assumes an unproven fact – there is no

Defendants’ Response to Plaintiff’s Motion for Partial Summary Judgment Page 9
#1242390
9 of 68
competent summary judgment evidence in the record to prove as a matter of law that

the statements made by the Anderson Defendants were in fact made up, or even untrue.

Because of this lack of evidence as to an essential element of John Doe I’s defamation

cause of action, John Doe I’s Motion for Summary Judgment against LeVonna and Wil-

liam Anderson should be denied in its entirety.

B. The Anderson Defendants are immune from liability under Texas Family
Code § 261.106.

John Doe I is not entitled to any finding that LeVonna or William Anderson is liable

for defamation because both defendants are civilly immune from liability for any com-

ments or statements made to Officer Makovy and Sandra King in the course of their in-

vestigations. Under § 261.106(a) of the Texas Family Code:

(a) A person acting in good faith who reports or assists in the investigation of a
report of alleged child abuse or neglect or who testifies or otherwise participates
in a judicial proceeding arising from a report, petition, or investigation of alleged
child abuse or neglect is immune from civil or criminal liability that might oth-
erwise be incurred or imposed.

As shown by Exhibit D to John Doe I’s Motion, the document contains notes regard-

ing statements made by LeVonna Anderson and William Anderson when Officer Brad

Makovy interviewed them about the accusations of sexual abuse made against Alexan-

der Anderson. Such interview was part of Officer Makovy’s investigation of a report of

the abuse of minor John Doe II. Mrs. Anderson provided such information in good faith

and to assist with the investigation. Ex. A [30]. She provided information about events

on the date of the alleged incident as well as information that she had been given about

the Doe family. See, Ex. D to Plaintiff’s Motion. The immunity statute does not protect

Defendants’ Response to Plaintiff’s Motion for Partial Summary Judgment Page 10
#1242390
10 of 68
communications from complaining witnesses only, or only from those that report

abuse. It protects statements by anyone assisting in the investigation. This must be the

case, since the purpose of the investigation is clearly to determine the facts, including

whether or not the abuse even occurred at all. The immunity statute in fact contem-

plates the possibility of penalties associated with false reports of abuse. Tex. Family

Code § 261.107. Consequently, LeVonna Anderson is immune from liability for the

statements made to Officer Makovy during the course of his investigation, and such fact

issue is enough to defeat John Doe I’s Motion.

Similarly, LeVonna Anderson and William Anderson are likewise immune for any

allegedly defamatory statements at issue to Sandra King. As shown by Plaintiff’s own

summary judgment evidence, Ms. King interviewed the Anderson Defendants in the

course of the Texas Department of Family and Protective Services Child-Care Licensing

investigation into the allegations of abuse against Alexander Anderson. Ex. E to Plain-

tiff’s Motion. The Andersons provided information to Ms. King in good faith and to as-

sist with her investigation. Ex. A [30] and Ex. B [34]. Consequently, Plaintiff’s Motion

for Summary Judgment should be denied as to any statements made to Officer Makovy

or Sandra King because the Anderson Defendants have raised a genuine issue of mate-

rial fact as to the affirmative defense of statutory immunity under § 261.106 of the Texas

Family Code.

C. All of the allegedly defamatory statements are subject to either an absolute
privilege or a qualified privilege.

In addition to being immune for the statements to Officer Makovy and Sandra King,

Defendants’ Response to Plaintiff’s Motion for Partial Summary Judgment Page 11
#1242390
11 of 68
the Anderson Defendants are protected by the absolute privilege provided by Texas

law. A witness is absolutely privileged to publish even defamatory matter concerning

another in communications preliminary to a proposed judicial proceeding or as part of

a judicial proceeding in which he is testifying, if it has some relation to the proceeding.

Hurlbut v. Gulf Atlantic Life Ins. Co., 749 S.W.2d 762, 767 (Tex. 1987) (quoting Restate-

ment (Second) of Torts § 588 (1977)); Shell Oil Co. v. Writt, 464 S.W.3d 650, 654-655 (Tex.

2015); see also Restatement (Second) of Torts § 587 (noting that an absolute privilege ap-

plies to communications by potential parties in criminal prosecutions). “The fact that a

formal proceeding does not eventually occur will not cause a communication to lose its

absolutely privileged status; however, it remains that the possibility of a proceeding

must have been a serious consideration at the time the communication was made.” Shell

Oil, 464 S.W.3d at 655.

Any statements made by LeVonna Anderson to Officer Makovy of the Grand Prairie

Police Department are subject to this absolute privilege. It is true that Alexander Ander-

son was never indicted and charges were not ultimately brought against him because

Officer Makovy closed his investigation by concluding the allegations were unfounded.

Ex. E at 68:8-13 [47]. However, when LeVonna Anderson participated in the interview

with Officer Makovy, there was the possibility that Alexander Anderson would be

prosecuted for the allegations made by John Doe I and John Doe II. Ex. A [30]. Any

statement made by Mrs. Anderson to law enforcement was made in the course of a

pending criminal investigation, and thus, her statements were subject to the absolute

privilege, and she cannot be held liable for such statements.

Defendants’ Response to Plaintiff’s Motion for Partial Summary Judgment Page 12
#1242390
12 of 68
The absolute privilege extends to quasi-judicial proceedings and other limited in-

stances in which the benefit of the communication to the general public outweighs the

potential harm to an individual. Shell Oil Co., 464 S.W.3d at 655. According to Exhibit E

of Plaintiff’s Motion, the statements to Sandra King were included in an Investigation

Report for the Texas Department of Family and Protective Services Child-Care Licens-

ing. The results of the Child-Care Licensing Division’s investigation could have affected

the operation of the school; if King had concluded that abuse had occurred or a risk of

harm existed for student at the Anderson School, she could have instituted a safety plan

for the school. Ex. F at 32:13-17 [55]; Ex. A [31]; Ex. B [34]. As a result, whether the

statements were defamatory or not, the Anderson Defendants are therefore protected

from liability by the absolute privilege for the statements made to Sandra King.

When statements made to public officials are not absolutely privileged, they may

still warrant protection as being conditionally privileged when the circumstances in-

duce a correct or reasonable belief that there is information that affects a sufficiently

important public interest and the public interest requires the communication of the de-

famatory matter to the public officer or a private citizen who is authorized to take ac-

tion if the defamatory matter is true. Shell Oil Co., 464 S.W.3d at 655, citing Hurlbut, 749

S.W.2d at 768. If the statements made to Sandra King and Officer Makovy are not abso-

lutely privileged, they are nevertheless subject to this qualified privilege. Investigating

the truth of the allegations against Alexander Anderson affected a sufficiently public

interest for The Anderson School and its students, as well as the interest of the public at

large with respect to criminal investigations of accused sex offenders. In addition, the

Defendants’ Response to Plaintiff’s Motion for Partial Summary Judgment Page 13
#1242390
13 of 68
communications were made to persons authorized or privileged to take action if the al-

legedly defamatory material is true. Consequently, William and LeVonna Anderson are

entitled to the protections of both the absolute and qualified privilege, and Plaintiff’s

Motion should be denied.

Plaintiff contends the statements made by the Anderson Defendants are not privi-

leged because the statements were about John Doe I, who was not the alleged perpetra-

tor or the subject of the investigation. Such an argument ignores the language of the

immunity statute and requires a too-narrow understanding of the privileges than set

forth in the case law. By its very nature, an investigation is intended to determine the

actual facts and circumstances, and thus information relating to witnesses, not just pro-

spective defendants, is relevant.

Furthermore, there is no evidence that LeVonna and William made any statements

to Officer Makovy or Sandra King with malice or reckless disregard for the truth. To

prove malice, there must be evidence that the defendant knew the statement to be false

when made. As explained above, Plaintiff has offered no evidence to support the con-

clusion that LeVonna or William Anderson knew their statements were false when

made. There is also no evidence that the Anderson Defendants acted with reckless dis-

regard for the truth. Rather, the summary judgment evidence attached hereto demon-

strates that both LeVonna and William Anderson communicated with Officer Makovy

and Sandra King in good faith and did not act with reckless disregard for the truth. Ex.

A [29-31] and Ex. B [33-35].

D. A fact issue exists as to whether the statements made by the Anderson De-

Defendants’ Response to Plaintiff’s Motion for Partial Summary Judgment Page 14
#1242390
14 of 68
fendants were even defamatory.

In addition to the reasons set forth above, the Plaintiff’s Motion for Summary

Judgment should also be denied because Plaintiff has not proven as a matter of law that

the statements at issue in his Motion were defamatory, one of the essential elements of

his claim.

A statement is defamatory if it tends to injure the subject's reputation, thereby ex-

posing him to public hatred, contempt, ridicule, or financial injury, or to impeach his

honesty, integrity, or virtue. Blanche v. First Nationwide Morg. Corp., 74 S.W.3d 444, 456

(Tex. App. — Dallas 2002, no pet.). However, statements must be viewed in context –

statements may be false, abusive, unpleasant or objectionable and still not be defamato-

ry in light of the surrounding circumstances. Am. Heritage Capital, LP v. Gonzalez, 436

S.W.3d 865, 875 (Tex. App.—Dallas 2014). Moreover, to be actionable, a statement must

assert an objectively verifiable fact rather than an opinion. Id; see also Neely v. Wilson, 418

S.W.3d 52, 62 (Tex. 2013) ("[S]tatements that are not verifiable as false cannot form the

basis of a defamation claim.").

1. “John Doe I’s eyes appeared dilated and he looked like he had been doing
drugs at Ripley’s Believe It or Not”

John Doe I alleges this statement allegedly made by William Anderson is actionable

as defamatory and defamatory per se. This statement, however, is an opinion based on

William Anderson’s subjective perception and observation of John Doe I on the date in

question. Ex. B. Statements of opinion are not actionable as defamation. Consequently,

Defendants’ Response to Plaintiff’s Motion for Partial Summary Judgment Page 15
#1242390
15 of 68
Plaintiff is not entitled to summary judgment with respect to his claim against William

Anderson based on this comment, and summary judgment should be denied.

2. “John Doe I was the number 1 drug dealer at Arlington Heights High
School;” “John Doe I uses drugs daily;” “John Doe I suffers from extreme
paranoia;” and “John Doe I was smoking marijuana in the parking lot at
Ripley’s Believe It or Not”

These were not the statements recorded by the investigating officer. Instead, the ac-

tual statements in Officer Makovy’s case notes are:

• “Mrs. Anderson said that she didn’t want to take the child into the school,

and that she was told by a parent of one of her student’s that [REDACTED]

was the number one drug dealer at Arlington Heights High School when he

attended school there.” See, Exhibit D to Plaintiff’s Motion at p. 11-12.

• “Mrs. Anderson went on to say that the child’s mother, [REDACTED] ex-

wife, had mentioned that [REDACTED] still uses drugs daily and that he has

extreme paranoia.” See, Exhibit D to Plaintiff’s Motion at p. 12.

• “Mrs. Anderson also stated that the child’s mother suspects that [REDACT-

ED] was in the RV in the parking lot smoking marijuana.” See, Exhibit D to

Plaintiff’s Motion at p. 12.

Mrs. Anderson did not actually say that she knew or believed any of these state-

ments, only that someone else had told her such information. But more importantly,

Mrs. Anderson made these comments to a police officer investigating an allegation of

sexual abuse. John Doe I’s reputation would not have been of interest to Officer Makovy

as an investigating police officer with no outside or continuing relationship with John

Defendants’ Response to Plaintiff’s Motion for Partial Summary Judgment Page 16
#1242390
16 of 68
Doe I, and Plaintiff has produced no evidence that such communication would be used

by the officer to subject Plaintiff to ridicule, contempt, etc. In fact, Officer Makovy testi-

fied that he did not form a belief about the truthfulness of LeVonna’s statements. Ex. E

at 69:2-25 [48]; 100:14-22 [49]. Considering the totality of the circumstances surrounding

the context of these statements, which merely repeated what other people had told Mrs.

Anderson, these statements were not defamatory or defamatory per se as a matter of

law.

Furthermore, slander is defined as a defamatory statement communicated without

legal justification. Randall’s Food Mkts. v. Johnson, 891 S.W.2d 640, 646 (Tex. 1995). Clear-

ly, Mrs. Anderson had legal justification to provide such information to Officer Makovy

because she believed it was relevant to the investigation. Ex. A. Consequently, these

statements are not actionable as slander.

3. “John Doe I is a drug addict.”

As with the comments to Officer Makovy, this alleged statement by LeVonna to

DFPS Investigator Sandra King is likewise not defamatory in context. Ms. King was in-

vestigating allegations of sexual assault against a teacher at the Anderson School; her

focus would not have been on the reputation of John Doe I. In addition, the whole

statement made by Mrs. Anderson was:

“Ms. Anderson stated that she knew why I was at the school and wanted to let
me know that the investigation regarding her son had really upset her and the
whole family. Ms. Anderson stated that she should have listened to Dr. Walsh
and not accepted into the school. She stated with GH being nonverbal, his moth-
er a drunk and the father a drug addict she realizes now that all of this is her
fault. ….Mrs. Anderson went over how upset this has made her. She stated that
when she first found out about the allegations she was so upset she couldn’t even

Defendants’ Response to Plaintiff’s Motion for Partial Summary Judgment Page 17
#1242390
17 of 68
function. She stated that she knows that her son did not do what they informed
her that was said.”

See, Ex. E to Plaintiff’s Motion at CPS 032.

Accepting as true Sandra King’s recitation of the conversation and considering the

statement in context and as a whole, Mrs. Anderson did not simply call John Doe I a

drug addict. A more reasonable interpretation, and one that a jury could reach, is that

the mother of an alleged child abuser was lamenting about her own feelings of having

made a mistake based on her role in admitting the allegedly abused child into the An-

derson School. In this context, an ordinary person would not interpret this statement as

tending to injure John Doe I’s reputation with Sandra King, who otherwise had no affil-

iation with John Doe I beyond his role as the accuser in the CPS investigation. Further-

more, the statement had no bearing on King’s conclusions in the investigation. Ex. F at

128:18-25 [59]; 148:23-149:1 [60-61]. Consequently, this alleged statement to Sandra King

by LeVonna Anderson should not be actionable as defamatory.

E. Plaintiff did not prove falsity as a matter of law.

Finally, John Doe I contends that he has proven falsity with respect to all of the de-

famatory statements because a presumption of falsity exists. In support of this legal

proposition that a presumption of falsity exists, Plaintiff cites Tex. Civ. Prac. & Rem.

Code § 73.005, a statute that does not apply to a slander claim such as the ones at issue

in John Doe I’s motion, as well as cases that stand for the proposition that truth is an af-

firmative defense to the action. However, the Supreme Court of Texas has not conclu-

sively ruled that a non-public figure is absolved of the burden of proving falsity in a

Defendants’ Response to Plaintiff’s Motion for Partial Summary Judgment Page 18
#1242390
18 of 68
defamation claim against a non-media defendant. See, Bentley v. Bunton, 94 S.W.3d 561,

586, n. 63 (Tex. 2002); Vice v. Kasprzak, 318 S.W.3d 1, 16, n. 8 (Tex. App. — Houston[1st

Dist.] 2009, no pet.). And, there is no question that the summary judgment movant seek-

ing affirmative relief as to his claims has the burden to prove each element of his claims

as a matter of law. Neely v. Wilson, 418 S.W.3d 52, 59 (Tex. 2013). Consequently, John

Doe I bears the burden to prove as a matter of law that the allegedly defamatory state-

ments made by LeVonna and William Anderson were false.

1. “John Doe I’s eyes appeared dilated and he looked like he had been doing
drugs at Ripley’s Believe It or No.”

Plaintiff offers no evidence to prove as a matter of law that this statement was false.

2. “John Doe I was the number 1 drug dealer at Arlington Heights High
School.”