Preview
FILED
DALLAS COUNTY
2/22/2017 9:30:39 AM
FELICIA PITRE
DISTRICT CLERK
Cause No. DC-15-07174
John Doe I, Indiviudally and as Next § In the District Court
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 William Anderson, LeVonna Anderson, and
Alexander Anderson’s Rule 166(d)-(m) Pretrial Filing
In compliance with the parties’ current scheduling order, Defendants William
Anderson, LeVonna Anderson, and Alexander Anderson file this to provide the Court
with the information set forth in Tex. R. Civ. P. 166(d) - (m).
Defendants William Anderson, LeVonna Anderson, and
Alexander Anderson’s Rule 166(d) - (m) Pretrial Filing Page 1
Respectfully submitted,
TOUCHSTONE, BERNAYS, JOHNSTON,
BEALL, SMITH & STOLLENWERCK, L.L.P.
4040 Renaissance Tower
1201 Elm Street
Dallas, Texas 75270
(214) 741-1166
(214) 259-8720 (fax)
By: /s/ Rocky Feemster
Rocky Feemster
State Bar No. 06873350
Rocky.Feemster@tbjbs.com
Trey D. Kampfer
State Bar No. 24078766
Trey.Kampfer@tbjbs.com
Counsel for the Anderson
Defendants
Certificate of Service
The undersigned certifies that on February 22, 2017, a true and correct copy of the
foregoing document was served on all known counsel of record in accordance with the
Texas Rules of Civil Procedure.
/s/ Rocky Feemster
Rocky Feemster
Trey D. Kampfer
Defendants William Anderson, LeVonna Anderson, and
Alexander Anderson’s Rule 166(d) - (m) Pretrial Filing Page 2
Rule 166(d): Requiring written statements of the parties’ contentions
All defendants contend that the alleged sexual assault of John Doe II on October
31, 2014 at Ripley’s Believe it or Not! did not occur. Defendant Alexander
Anderson denies that he assaulted, sexually assaulted, or in any way negligently
or intentionally harmed John Doe II. Defendant Alexander Anderson denies all
causes of action asserted against him. Defendant Alexander Anderson also
contends that, as a matter of law, Plaintiffs cannot recover against him under
negligence-based theories (including negligence, negligence per se, and gross
negligence) based on the alleged sexual assault, because the intentional nature of
assault is not recoverable under a negligence theory of liability. Fulmer v. Rider,
635 S.W.2d 875 (Tex. App. — Tyler 1982, writ ref’d n.r.e.); Gavrel v. Lieberman, So.
02-08-00414-CV, 2010 Tex. App. LEXIS 2406, 2010 WL 1270334 ((Tex. App. — Fort
Worth, Aug. 27, 2009, no pet) (mem. op.).
Defendants LeVonna Anderson and William Anderson contend that they are not
liable for the alleged assault under the various causes of action asserted against
them, including respondeat superior/vicarious liability, negligence, negligent
misrepresentation and fraud, breach of fiduciary duty, negligence per se,
intentional infliction of emotional distress, negligent theories based on § 302B,
311, and 323 of the Restatement (Second) of Torts, gross negligence, and breach
of contract.
Defendants LeVonna Anderson and William Anderson contend that the
defamation claims asserted against them are subject to statutory immunity and
qualified privilege because the statements were made to persons investigating
the sexual assault allegations. Defendants further contend that the statements
were made in good faith, and to the extent the jury may determine that such
statements were false, these Defendants did not make these statements with
knowledge of their falsity or with a high degree of awareness that the statements
were probably false or with serious doubts about the truth of such statements. In
addition, Defendants contend that the allegedly defamatory statements
constituted opinion or were not defamatory as a matter of law.
Rule 166(e): Contested issues of fact and simplification of the issues
This lawsuit involves two separate categories of conduct. The first category is all
conduct related to whether or not the alleged assault of John Doe II occurred on
October 31, 2014 at Ripley’s Believe It or Not! The second category involves the
allegations of defamation made by Plaintiffs against Defendants LeVonna and
William Anderson, and the allegations of defamation made by Counterplaintiffs
LeVonna Anderson, William Anderson, and Alexander Anderson against John
Doe I. The nature of the competing claims and defenses to the defamation claims
Defendants William Anderson, LeVonna Anderson, and
Alexander Anderson’s Rule 166(d) - (m) Pretrial Filing Page 3
will likely complicate the evidence solely related to the allegations related to the
assault.
Rule 166(f): The possibility of obtaining stipulations of fact:
Defendants are willing to stipulate that: Plaintiff John Doe II was a student at the
Anderson School on October 31, 2014, Plaintiff John Doe I is Plaintiff John Doe
II’s father, Plaintiff John Doe I and Plaintiff John Doe II went to Ripley’s Believe
It or Not! on October 31, 2014 for a field trip with the Anderson School, Plaintiff
John Doe II was separated from Plaintiff John Doe I for a period of time when
Plaintiff John Doe II was in the Odditorium exhibit at the museum, Defendant
Alex Anderson was in the Odditorium exhibit with Plaintiff John Doe II during
that time that Plaintiff John Doe II was separated from Plaintiff John Doe I,
Plaintiff John Doe II was wearing a skeleton costume while on the field trip, John
Doe II never returned to the Anderson School after the field trip, Defendant
Alexander Anderson is the son of Defendants LeVonna Anderson and William
Anderson, Defendant Alexander Anderson was a teacher at the Anderson School
on October 31, 2014, Defendants LeVonna and William Anderson are co-owners
of the Anderson School, Plaintiff John Doe II is autistic or on the autism
spectrum, Plaintiff John Doe II is not competent to testify at trial, Defendant
Alexander Anderson was not formally charged with committing a crime against
Plaintiff John Doe II, the Grand Prairie Police Department concluded its
investigation into the assault allegations against Defendant Alexander Anderson
with a finding that the allegations were unfounded, Plaintiff John Doe II was not
physically examined by a healthcare provider until January 2015.
Rule 166(g): The identification of legal matters to be ruled on or decided by the
Court:
1. Whether any hearsay statements by Charlotte Sammons or Plaintiff John Doe I about
comments made by Plaintiff John Doe II about Alexander Anderson or the Anderson
School are admissible. Defendant refers the Court to Texas Family Code § 104.006
and Texas Code of Criminal Procedure § 38.072, two statutes from other legal
contexts that prescribe the requirements for admitting hearsay outcry testimony.
2. Whether Defendants LeVonna and William Anderson are entitled to assert the
statutory immunity defense for statements made during investigations into child
abuse, as set forth in Tex. Family Code § 261.106(a).
3. Whether Defendants LeVonna and William Anderson are entitled to assert the
absolute privilege recognized
Defendants William Anderson, LeVonna Anderson, and
Alexander Anderson’s Rule 166(d) - (m) Pretrial Filing Page 4
4. Whether Defendants LeVonna and William Anderson are entitled to assert the
qualified privilege for statements made to law enforcement and other public officials
during investigations.
5. Whether the allegedly defamatory statements made by LeVonna and William
Anderson are defamatory in nature and therefore actionable.
6. Whether the Defendants are entitled to a spoliation instruction in light of Plaintiffs’
failure to retain and preserve the costume that John Doe II wore on the day of the
alleged assault.
7. Whether Plaintiffs may offer expert opinion testimony from witness Charlotte Ice
Sammons, who is not qualified to testify and whose opinions are not reliable.
8. Whether the Plaintiffs will be allowed to offer any evidence or testimony that
purports to authenticate or establish the truthfulness or credibility of comments
made by Plaintiff John Doe II. The credibility of an outcry is solely within the
province of the jury, and neither a layperson nor an expert may provide opinion
testimony as to whether the outcry statements of a child are credible. In addition,
opinion testimony may not be offered about a victim’s propensity to tell the truth,
whether from a layperson or an expert.
9. Whether Plaintiff may recover from Alexander Anderson under a negligence-based
theory based on allegations of intentional acts of assault or sexual abuse. The law
provides that intentional torts are distinct causes of action and are not recoverable in
negligence. Fulmer v. Rider, 635 S.W.2d 875 (Tex. App. — Tyler 1982, writ ref’d
n.r.e.); Gavrel v. Lieberman, So. 02-08-00414-CV, 2010 Tex. App. LEXIS 2406, 2010 WL
1270334 ((Tex. App. — Fort Worth, Aug. 27, 2009, no pet) (mem. op.).
10. Whether Plaintiffs can assert intentional infliction of emotional distress claims under
the facts of this case.
11. Whether the Plaintiffs can assert a breach of fiduciary duty claim against the
Defendants under the facts of this case.
12. Whether the Plaintiffs can assert a vicarious liability/respondeat superior claim
against Defendants LeVonna Anderson and William Anderson based on the alleged
conduct of Alexander Anderson.
13. Whether the Plaintiffs can assert any claims against any of the Defendants based on
fraud or negligent misrepresentation.
14. Whether any of the allegedly defamatory statements constitute opinion rather than
defamatory statements of fact.
Defendants William Anderson, LeVonna Anderson, and
Alexander Anderson’s Rule 166(d) - (m) Pretrial Filing Page 5
Rule 166(h): The exchange of a list of direct fact witnesses, other than rebuttal or
impeaching witnesses the necessity of whose testimony cannot reasonably be
anticipated before the time of trial, who will be called to testify at trial, stating their
address and telephone number, and the subject of the testimony of each such
witnesses.
The parties have already filed their witness lists.
Rule 166(i): The exchange of a list of expert witnesses who will be called to testify at
trial, stating their address and telephone number, and the subject of the testimony
and opinions that will be proffered by each expert witness.
The parties have already filed their witness lists.
Rule 166(j): Agreed applicable propositions of law and contested issues of law.
Defendants refer the Court to its response to Rule 166(g). The parties are not
agreed on any of these propositions of law.
Rule 166(k): Proposed jury charge questions, instructions, and definitions for a jury
case or proposed findings of fact and conclusions of law for a nonjury case.
The parties have already filed their proposed jury charge questions, instructions
and definitions.
Rule 166(l): The marking and exchanging of all exhibits that any party may use at
trial and stipulation to the authenticity and admissibility of exhibits to be used at
trial.
The parties have already exchanged exhibits
Rule 166(m): Written trial objections to the opposite party’s exhibits, stating the basis
for each objection
The parties have already filed these trial objections.
Defendants William Anderson, LeVonna Anderson, and
Alexander Anderson’s Rule 166(d) - (m) Pretrial Filing Page 6
Preview
FILED DALLAS COUNTY 2/22/2017 9:30:39 AM FELICIA PITRE DISTRICT CLERK Cause No. DC-15-07174 John Doe I, Indiviudally and as Next § In the District Court 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 William Anderson, LeVonna Anderson, and Alexander Anderson’s Rule 166(d)-(m) Pretrial Filing In compliance with the parties’ current scheduling order, Defendants William Anderson, LeVonna Anderson, and Alexander Anderson file this to provide the Court with the information set forth in Tex. R. Civ. P. 166(d) - (m). Defendants William Anderson, LeVonna Anderson, and Alexander Anderson’s Rule 166(d) - (m) Pretrial Filing Page 1 Respectfully submitted, TOUCHSTONE, BERNAYS, JOHNSTON, BEALL, SMITH & STOLLENWERCK, L.L.P. 4040 Renaissance Tower 1201 Elm Street Dallas, Texas 75270 (214) 741-1166 (214) 259-8720 (fax) By: /s/ Rocky Feemster Rocky Feemster State Bar No. 06873350 Rocky.Feemster@tbjbs.com Trey D. Kampfer State Bar No. 24078766 Trey.Kampfer@tbjbs.com Counsel for the Anderson Defendants Certificate of Service The undersigned certifies that on February 22, 2017, a true and correct copy of the foregoing document was served on all known counsel of record in accordance with the Texas Rules of Civil Procedure. /s/ Rocky Feemster Rocky Feemster Trey D. Kampfer Defendants William Anderson, LeVonna Anderson, and Alexander Anderson’s Rule 166(d) - (m) Pretrial Filing Page 2 Rule 166(d): Requiring written statements of the parties’ contentions All defendants contend that the alleged sexual assault of John Doe II on October 31, 2014 at Ripley’s Believe it or Not! did not occur. Defendant Alexander Anderson denies that he assaulted, sexually assaulted, or in any way negligently or intentionally harmed John Doe II. Defendant Alexander Anderson denies all causes of action asserted against him. Defendant Alexander Anderson also contends that, as a matter of law, Plaintiffs cannot recover against him under negligence-based theories (including negligence, negligence per se, and gross negligence) based on the alleged sexual assault, because the intentional nature of assault is not recoverable under a negligence theory of liability. Fulmer v. Rider, 635 S.W.2d 875 (Tex. App. — Tyler 1982, writ ref’d n.r.e.); Gavrel v. Lieberman, So. 02-08-00414-CV, 2010 Tex. App. LEXIS 2406, 2010 WL 1270334 ((Tex. App. — Fort Worth, Aug. 27, 2009, no pet) (mem. op.). Defendants LeVonna Anderson and William Anderson contend that they are not liable for the alleged assault under the various causes of action asserted against them, including respondeat superior/vicarious liability, negligence, negligent misrepresentation and fraud, breach of fiduciary duty, negligence per se, intentional infliction of emotional distress, negligent theories based on § 302B, 311, and 323 of the Restatement (Second) of Torts, gross negligence, and breach of contract. Defendants LeVonna Anderson and William Anderson contend that the defamation claims asserted against them are subject to statutory immunity and qualified privilege because the statements were made to persons investigating the sexual assault allegations. Defendants further contend that the statements were made in good faith, and to the extent the jury may determine that such statements were false, these Defendants did not make these statements with knowledge of their falsity or with a high degree of awareness that the statements were probably false or with serious doubts about the truth of such statements. In addition, Defendants contend that the allegedly defamatory statements constituted opinion or were not defamatory as a matter of law. Rule 166(e): Contested issues of fact and simplification of the issues This lawsuit involves two separate categories of conduct. The first category is all conduct related to whether or not the alleged assault of John Doe II occurred on October 31, 2014 at Ripley’s Believe It or Not! The second category involves the allegations of defamation made by Plaintiffs against Defendants LeVonna and William Anderson, and the allegations of defamation made by Counterplaintiffs LeVonna Anderson, William Anderson, and Alexander Anderson against John Doe I. The nature of the competing claims and defenses to the defamation claims Defendants William Anderson, LeVonna Anderson, and Alexander Anderson’s Rule 166(d) - (m) Pretrial Filing Page 3 will likely complicate the evidence solely related to the allegations related to the assault. Rule 166(f): The possibility of obtaining stipulations of fact: Defendants are willing to stipulate that: Plaintiff John Doe II was a student at the Anderson School on October 31, 2014, Plaintiff John Doe I is Plaintiff John Doe II’s father, Plaintiff John Doe I and Plaintiff John Doe II went to Ripley’s Believe It or Not! on October 31, 2014 for a field trip with the Anderson School, Plaintiff John Doe II was separated from Plaintiff John Doe I for a period of time when Plaintiff John Doe II was in the Odditorium exhibit at the museum, Defendant Alex Anderson was in the Odditorium exhibit with Plaintiff John Doe II during that time that Plaintiff John Doe II was separated from Plaintiff John Doe I, Plaintiff John Doe II was wearing a skeleton costume while on the field trip, John Doe II never returned to the Anderson School after the field trip, Defendant Alexander Anderson is the son of Defendants LeVonna Anderson and William Anderson, Defendant Alexander Anderson was a teacher at the Anderson School on October 31, 2014, Defendants LeVonna and William Anderson are co-owners of the Anderson School, Plaintiff John Doe II is autistic or on the autism spectrum, Plaintiff John Doe II is not competent to testify at trial, Defendant Alexander Anderson was not formally charged with committing a crime against Plaintiff John Doe II, the Grand Prairie Police Department concluded its investigation into the assault allegations against Defendant Alexander Anderson with a finding that the allegations were unfounded, Plaintiff John Doe II was not physically examined by a healthcare provider until January 2015. Rule 166(g): The identification of legal matters to be ruled on or decided by the Court: 1. Whether any hearsay statements by Charlotte Sammons or Plaintiff John Doe I about comments made by Plaintiff John Doe II about Alexander Anderson or the Anderson School are admissible. Defendant refers the Court to Texas Family Code § 104.006 and Texas Code of Criminal Procedure § 38.072, two statutes from other legal contexts that prescribe the requirements for admitting hearsay outcry testimony. 2. Whether Defendants LeVonna and William Anderson are entitled to assert the statutory immunity defense for statements made during investigations into child abuse, as set forth in Tex. Family Code § 261.106(a). 3. Whether Defendants LeVonna and William Anderson are entitled to assert the absolute privilege recognized Defendants William Anderson, LeVonna Anderson, and Alexander Anderson’s Rule 166(d) - (m) Pretrial Filing Page 4 4. Whether Defendants LeVonna and William Anderson are entitled to assert the qualified privilege for statements made to law enforcement and other public officials during investigations. 5. Whether the allegedly defamatory statements made by LeVonna and William Anderson are defamatory in nature and therefore actionable. 6. Whether the Defendants are entitled to a spoliation instruction in light of Plaintiffs’ failure to retain and preserve the costume that John Doe II wore on the day of the alleged assault. 7. Whether Plaintiffs may offer expert opinion testimony from witness Charlotte Ice Sammons, who is not qualified to testify and whose opinions are not reliable. 8. Whether the Plaintiffs will be allowed to offer any evidence or testimony that purports to authenticate or establish the truthfulness or credibility of comments made by Plaintiff John Doe II. The credibility of an outcry is solely within the province of the jury, and neither a layperson nor an expert may provide opinion testimony as to whether the outcry statements of a child are credible. In addition, opinion testimony may not be offered about a victim’s propensity to tell the truth, whether from a layperson or an expert. 9. Whether Plaintiff may recover from Alexander Anderson under a negligence-based theory based on allegations of intentional acts of assault or sexual abuse. The law provides that intentional torts are distinct causes of action and are not recoverable in negligence. Fulmer v. Rider, 635 S.W.2d 875 (Tex. App. — Tyler 1982, writ ref’d n.r.e.); Gavrel v. Lieberman, So. 02-08-00414-CV, 2010 Tex. App. LEXIS 2406, 2010 WL 1270334 ((Tex. App. — Fort Worth, Aug. 27, 2009, no pet) (mem. op.). 10. Whether Plaintiffs can assert intentional infliction of emotional distress claims under the facts of this case. 11. Whether the Plaintiffs can assert a breach of fiduciary duty claim against the Defendants under the facts of this case. 12. Whether the Plaintiffs can assert a vicarious liability/respondeat superior claim against Defendants LeVonna Anderson and William Anderson based on the alleged conduct of Alexander Anderson. 13. Whether the Plaintiffs can assert any claims against any of the Defendants based on fraud or negligent misrepresentation. 14. Whether any of the allegedly defamatory statements constitute opinion rather than defamatory statements of fact. Defendants William Anderson, LeVonna Anderson, and Alexander Anderson’s Rule 166(d) - (m) Pretrial Filing Page 5 Rule 166(h): The exchange of a list of direct fact witnesses, other than rebuttal or impeaching witnesses the necessity of whose testimony cannot reasonably be anticipated before the time of trial, who will be called to testify at trial, stating their address and telephone number, and the subject of the testimony of each such witnesses. The parties have already filed their witness lists. Rule 166(i): The exchange of a list of expert witnesses who will be called to testify at trial, stating their address and telephone number, and the subject of the testimony and opinions that will be proffered by each expert witness. The parties have already filed their witness lists. Rule 166(j): Agreed applicable propositions of law and contested issues of law. Defendants refer the Court to its response to Rule 166(g). The parties are not agreed on any of these propositions of law. Rule 166(k): Proposed jury charge questions, instructions, and definitions for a jury case or proposed findings of fact and conclusions of law for a nonjury case. The parties have already filed their proposed jury charge questions, instructions and definitions. Rule 166(l): The marking and exchanging of all exhibits that any party may use at trial and stipulation to the authenticity and admissibility of exhibits to be used at trial. The parties have already exchanged exhibits Rule 166(m): Written trial objections to the opposite party’s exhibits, stating the basis for each objection The parties have already filed these trial objections. Defendants William Anderson, LeVonna Anderson, and Alexander Anderson’s Rule 166(d) - (m) Pretrial Filing Page 6