Vanessa Velez Labrado v. Leith Labrado, Laboe Labrado and Three R's School, LLC
Opinion
ACCEPTED
08-24-00220-CV
EIGHTH COURT OF APPEALS
08-24-00220-CV EL PASO, TEXAS 10/31/2024 9:42 AM
ELIZABETH G. FLORES
CLERK
No. 08-24-00220-CV
FILED IN
8th COURT OF APPEALS
IN THE COURT OF APPEALS EL PASO, TEXAS FOR THE EIGHTH DISTRICT OF TEXAS10/31/2024 9:42:27 AM EL PASO, TEXAS ELIZABETH G. FLORES Clerk
VANESSA VELEZ LABRADO,
Appellant,
v.
LEITH LABRADO and LABOE LABRADO, Appellees.
BRIEF OF APPELLANT
Rachel Moreno
rachel.moreno@kempsmith.com State Bar No. 24078321
KEMP SMITH LLP
221 N. Kansas, Suite 1700 El Paso, Texas 79901
Telephone: (915) 533-4424 Facsimile: (915) 546-5360
Attorneys for Appellant
ORAL ARGUMENT NOT REQUESTED
IDENTITY OF PARTIES, COUNSEL, AND TRIAL JUDGES
Pursuant to TEX. R. APP. P. 38.1(a) and 8TH TEX. APP. (EL PASO) LOC. R. 3, Appellant certifies that the following is a complete list of all parties to this litigation, the names and addresses of all counsel, and a listing of all trial judges presiding.
Party Appellate Counsel Trial Counsel Vanessa Velez Rachel C. Moreno Doris Sipes Labrado Kemp Smith LLP 310 N. Mesa, Suite 400 (Appellant and 221 N. Kansas El Paso, Texas 79901 Defendant below) Suite 1700 (915) 544-5235 El Paso, Texas 79901 doris@dorissipes.com (915) 533-4424
Leith Labrado Troy C. Brown Troy C. Brown 1074 Country Club Rd. 1074 Country Club Rd.
Suite B-4 Suite B-4 El Paso, Texas 79932 El Paso, Texas 79932 troy@tcblegal.com troy@tcblegal.com
Laboe Labrado Laura Enriquez Laura Enriquez (Appellees and Laura Enriquez and Laura Enriquez and Defendants below) Associates, PLLC Associates, PLLC 221 N. Kansas, Suite 710 221 N. Kansas, Suite 710 El Paso, TX 79901 El Paso, TX 79901 enriquez@leeplaw.com enriquez@leeplaw.com
Trial Judge Presiding: The Honorable Selena Solis Judge Presiding in the 243rdth Judicial District Court of El Paso County, Texas
i
TABLE OF CONTENTS
Page
IDENTITY OF PARTIES, COUNSEL, AND TRIAL JUDGES ............................. i TABLE OF CONTENTS ......................................................................................... iii INDEX OF AUTHORITIES.................................................................................... iv RECORD REFERENCES ..................................................................................... viii STATEMENT OF THE CASE ............................................................................. viiii STATEMENT OF JURISDICTION....................................................................... xii STATEMENT ON ORAL ARGUMENT ............................................................. xiii ISSUES PRESENTED.......................................................................................... xiiii STATEMENT OF FACTS ........................................................................................1 I. Introduction. ..........................................................................................1 II. The Initial Outcry and CPS Investigation. ............................................3 III. The Temporary Restraining Order and the Protective Orders ............11 IV. The March Outcry ...............................................................................14 V. The April Outcry .................................................................................15 VI. The Daycare Investigation ..................................................................17 SUMMARY OF THE ARGUMENT ......................................................................19 ARGUMENT ...........................................................................................................22 I. Standards of Review............................................................................22
II. Vanessa conclusively proved her defenses of absolute immunity through the judicial-proceedings privilege and statutory immunity under Section 261.106 of the Texas Family Code. .............................23
III. The evidence was legally insufficient to support the jury’s finding of ii
liability against Vanessa for malicious prosecution of a civil claim and the trial court erred as a matter of law entering judgment against Vanessa based on that erroneous verdict. ...........................................34
IV. The evidence was legally insufficient to support the jury’s finding of liability against Vanessa for abuse of process and the trial court erred as a matter of law entering judgment against Vanessa based on that erroneous verdict. ................................................................................43
V. There is legally insufficient evidence in the trial record to support the jury’s answers regarding damages. .....................................................48
PRAYER ..................................................................................................................55 CERTIFICATE OF COMPLIANCE .......................................................................56 CERTIFICATE OF SERVICE ................................................................................56 APPENDIX ..............................................................................................................57 Verdict [CR 2463-2478] ............................................................................ A-1 Final Judgment [CR 2585-2587] ................................................................ A-2
iii
INDEX OF AUTHORITIES
Page
Cases
Airgas-Sw., Inc. v. IWS Gas & Supply of Tex., Ltd., 390 S.W.3d 472 (Tex. App.—Houston [1st Dist.] 2012, pet. denied) ............................... 40, 41, 42
Alvarez v. Anesthesiology Assoc., 967 S.W.2d 871 (Tex. App.—Corpus Christi-Edinburg 1998, pet. denied) ...................................37
Aransas Harbor Terminal R.R. Comm’n v. Taber, 235 S.W. 841 (Tex. Comm'n App. 1921) ....................................................................................26
Arcides v. Rojas, 677 S.W.3d 154 (Tex. App.—El Paso 2023, no pet.) .....................................................................23
Bennett v. Grant, 525 S.W.3d 642 (Tex. 2017) .......................................................49 Bentley v. Bunton, 94 S.W.3d 561 (Tex. 2002) .......................................... 50, 53, 54 Bird v. W.C.W., 868 S.W.2d 767 (Tex. 1994) .................................................. 25, 28
Blanton v. Morgan, 681 S.W.2d 876 (Tex. App.—El Paso 1984, writ ref’d n.r.e.) ................................................. 41, 44
Briscoe v. LaHue, 460 U.S. 325 (1983) ...................................................................25
Butler v. Morgan, 590 S.W.2d 543 (Tex. Civ. App.—Houston [1st Dist.] 1979, writ ref’d n.r.e.) ...................... 40, 41
Cantey Hanger, LLP v. Byrd, 467 S.W.3d 477 (Tex. 2015) ...................................25
Chaney v. Corona, 103 S.W.3d 608 (Tex. App.—San Antonio 2003, pet. denied).................................... 30, 31, 32, 33
City of Keller v. Wilson, 168 S.W.3d 802 (Tex. 2005)) ..........................................23
Detenbeck v. Koester, 886 S.W.2d 477 (Tex. App.—Houston [1st Dist.] 1994, no writ) ..................................................47
E. Tex. Educ. Ins. Ass'n v. Ramirez, 631 S.W.3d 908 (Tex. App.—El Paso 2021, pet. denied)...............................................................23
iv
Gonzalez v. Avalos, 866 S.W.2d 346 (Tex. App.—El Paso 1993, writ dism’d w.o.j.) ...................................................26
Graham Cent. Station, Inc. v. Pena, 442 S.W.3d 261 (Tex. 2014)) ........................23
Graves v. Evangelista-Ysasaga, No. 14-22-00137-CV, 2023 WL 370589 (Tex. App.—Houston [14th Dist.] 2023, pet. denied)..........................................45
Gregory v. Chohan, 670 S.W.3d 546, 563-64 (Tex. 2023) .............................. 50, 54
Howard v. White, No. 05-01-01036-CV, 2002 WL 1470071 (Tex. App.—Dallas Jul. 10, 2002, no pet.) ..........................................................37
Free access — add to your briefcase to read the full text and ask questions with AI
ACCEPTED
08-24-00220-CV
EIGHTH COURT OF APPEALS
08-24-00220-CV EL PASO, TEXAS 10/31/2024 9:42 AM
ELIZABETH G. FLORES
CLERK
No. 08-24-00220-CV
FILED IN
8th COURT OF APPEALS
IN THE COURT OF APPEALS EL PASO, TEXAS FOR THE EIGHTH DISTRICT OF TEXAS10/31/2024 9:42:27 AM EL PASO, TEXAS ELIZABETH G. FLORES Clerk
VANESSA VELEZ LABRADO,
Appellant,
v.
LEITH LABRADO and LABOE LABRADO, Appellees.
BRIEF OF APPELLANT
Rachel Moreno
rachel.moreno@kempsmith.com State Bar No. 24078321
KEMP SMITH LLP
221 N. Kansas, Suite 1700 El Paso, Texas 79901
Telephone: (915) 533-4424 Facsimile: (915) 546-5360
Attorneys for Appellant
ORAL ARGUMENT NOT REQUESTED
IDENTITY OF PARTIES, COUNSEL, AND TRIAL JUDGES
Pursuant to TEX. R. APP. P. 38.1(a) and 8TH TEX. APP. (EL PASO) LOC. R. 3, Appellant certifies that the following is a complete list of all parties to this litigation, the names and addresses of all counsel, and a listing of all trial judges presiding.
Party Appellate Counsel Trial Counsel Vanessa Velez Rachel C. Moreno Doris Sipes Labrado Kemp Smith LLP 310 N. Mesa, Suite 400 (Appellant and 221 N. Kansas El Paso, Texas 79901 Defendant below) Suite 1700 (915) 544-5235 El Paso, Texas 79901 doris@dorissipes.com (915) 533-4424
Leith Labrado Troy C. Brown Troy C. Brown 1074 Country Club Rd. 1074 Country Club Rd.
Suite B-4 Suite B-4 El Paso, Texas 79932 El Paso, Texas 79932 troy@tcblegal.com troy@tcblegal.com
Laboe Labrado Laura Enriquez Laura Enriquez (Appellees and Laura Enriquez and Laura Enriquez and Defendants below) Associates, PLLC Associates, PLLC 221 N. Kansas, Suite 710 221 N. Kansas, Suite 710 El Paso, TX 79901 El Paso, TX 79901 enriquez@leeplaw.com enriquez@leeplaw.com
Trial Judge Presiding: The Honorable Selena Solis Judge Presiding in the 243rdth Judicial District Court of El Paso County, Texas
i
TABLE OF CONTENTS
Page
IDENTITY OF PARTIES, COUNSEL, AND TRIAL JUDGES ............................. i TABLE OF CONTENTS ......................................................................................... iii INDEX OF AUTHORITIES.................................................................................... iv RECORD REFERENCES ..................................................................................... viii STATEMENT OF THE CASE ............................................................................. viiii STATEMENT OF JURISDICTION....................................................................... xii STATEMENT ON ORAL ARGUMENT ............................................................. xiii ISSUES PRESENTED.......................................................................................... xiiii STATEMENT OF FACTS ........................................................................................1 I. Introduction. ..........................................................................................1 II. The Initial Outcry and CPS Investigation. ............................................3 III. The Temporary Restraining Order and the Protective Orders ............11 IV. The March Outcry ...............................................................................14 V. The April Outcry .................................................................................15 VI. The Daycare Investigation ..................................................................17 SUMMARY OF THE ARGUMENT ......................................................................19 ARGUMENT ...........................................................................................................22 I. Standards of Review............................................................................22
II. Vanessa conclusively proved her defenses of absolute immunity through the judicial-proceedings privilege and statutory immunity under Section 261.106 of the Texas Family Code. .............................23
III. The evidence was legally insufficient to support the jury’s finding of ii
liability against Vanessa for malicious prosecution of a civil claim and the trial court erred as a matter of law entering judgment against Vanessa based on that erroneous verdict. ...........................................34
IV. The evidence was legally insufficient to support the jury’s finding of liability against Vanessa for abuse of process and the trial court erred as a matter of law entering judgment against Vanessa based on that erroneous verdict. ................................................................................43
V. There is legally insufficient evidence in the trial record to support the jury’s answers regarding damages. .....................................................48
PRAYER ..................................................................................................................55 CERTIFICATE OF COMPLIANCE .......................................................................56 CERTIFICATE OF SERVICE ................................................................................56 APPENDIX ..............................................................................................................57 Verdict [CR 2463-2478] ............................................................................ A-1 Final Judgment [CR 2585-2587] ................................................................ A-2
iii
INDEX OF AUTHORITIES
Page
Cases
Airgas-Sw., Inc. v. IWS Gas & Supply of Tex., Ltd., 390 S.W.3d 472 (Tex. App.—Houston [1st Dist.] 2012, pet. denied) ............................... 40, 41, 42
Alvarez v. Anesthesiology Assoc., 967 S.W.2d 871 (Tex. App.—Corpus Christi-Edinburg 1998, pet. denied) ...................................37
Aransas Harbor Terminal R.R. Comm’n v. Taber, 235 S.W. 841 (Tex. Comm'n App. 1921) ....................................................................................26
Arcides v. Rojas, 677 S.W.3d 154 (Tex. App.—El Paso 2023, no pet.) .....................................................................23
Bennett v. Grant, 525 S.W.3d 642 (Tex. 2017) .......................................................49 Bentley v. Bunton, 94 S.W.3d 561 (Tex. 2002) .......................................... 50, 53, 54 Bird v. W.C.W., 868 S.W.2d 767 (Tex. 1994) .................................................. 25, 28
Blanton v. Morgan, 681 S.W.2d 876 (Tex. App.—El Paso 1984, writ ref’d n.r.e.) ................................................. 41, 44
Briscoe v. LaHue, 460 U.S. 325 (1983) ...................................................................25
Butler v. Morgan, 590 S.W.2d 543 (Tex. Civ. App.—Houston [1st Dist.] 1979, writ ref’d n.r.e.) ...................... 40, 41
Cantey Hanger, LLP v. Byrd, 467 S.W.3d 477 (Tex. 2015) ...................................25
Chaney v. Corona, 103 S.W.3d 608 (Tex. App.—San Antonio 2003, pet. denied).................................... 30, 31, 32, 33
City of Keller v. Wilson, 168 S.W.3d 802 (Tex. 2005)) ..........................................23
Detenbeck v. Koester, 886 S.W.2d 477 (Tex. App.—Houston [1st Dist.] 1994, no writ) ..................................................47
E. Tex. Educ. Ins. Ass'n v. Ramirez, 631 S.W.3d 908 (Tex. App.—El Paso 2021, pet. denied)...............................................................23
iv
Gonzalez v. Avalos, 866 S.W.2d 346 (Tex. App.—El Paso 1993, writ dism’d w.o.j.) ...................................................26
Graham Cent. Station, Inc. v. Pena, 442 S.W.3d 261 (Tex. 2014)) ........................23
Graves v. Evangelista-Ysasaga, No. 14-22-00137-CV, 2023 WL 370589 (Tex. App.—Houston [14th Dist.] 2023, pet. denied)..........................................45
Gregory v. Chohan, 670 S.W.3d 546, 563-64 (Tex. 2023) .............................. 50, 54
Howard v. White, No. 05-01-01036-CV, 2002 WL 1470071 (Tex. App.—Dallas Jul. 10, 2002, no pet.) ..........................................................37
In re R.A., 346 S.W.3d 691 (Tex. App.—El Paso 2009, no pet.) ..................... 27, 36 James v. Brown, 637 S.W.2d 914 (Tex. 1982) ........................................................26
Johnson v. State Bd. of Morticians, 288 S.W.2d 214 (Tex. App.—Galveston 1956, no writ).................................................................35
Landry’s, Inc. v. Animal Legal Def. Fund, 631 S.W.3d 40 (Tex. 2021) .... 25, 26, 28
Laub v. Pesikoff, 979 S.W.2d 686 (Tex. App.—Houston [1st Dist.] 1998, pet. denied) ............................................25
Martin v. Tex. Dep’t of Protective and Reg. Svcs., 405 F.Supp.2d 775 (S.D. Tex. 2005) ............................................................................................ 27, 36
Martinez v. English, 267 S.W.3d 521 (Tex. App.—Austin 2008, pet. denied) ......................................................... 45, 47
Montemayor v. Ortiz, 208 S.W.3d 627 (Tex. App.—Corpus Christi 2006, pet. denied) ............................................ 47, 48
Pye v. Cardwell, 222 S.W. 153 (Tex. 1920) ............................................................40 Reagan v. Guardian Life Ins. Co., 166 S.W.2d 909 (Tex. 1942) ............................26 Saenz v. Fidelity & Guar. Ins. Underwriters, 925 S.W.2d 607 (Tex. 1996) ...........50 Salado Coll v. Davis, 47 Tex. 131, 136 (1877) .......................................................42
Sanders Oil & Gas, Ltd. v. Big Lake Kay Constr., Inc., 554 S.W.3d 79 (Tex. App.—El Paso 2018, no pet.) .....................................................................23
v
Service Corp. Intern. v. Guerra, 348 S.W.3d 221 (Tex. 2011) ........................ 49, 53
Sharif-Munir-Davidson Dev. Corp. v. Bell, 788 S.W.2d 427 (Tex.App.—Dallas 1990, writ denied) .................................................................40
Spencer v. Overpeck, 2017 WL 993093 (Tex. App.—San Antonio Mar. 15, 2017, pet. denied) ........................................46
Sterner v. Marathon Oil Co., 767 S.W.2d 686 (Tex. 1989) ....................................22 Telthorster v. Tennell, 92 S.W.3d 457 (Tex. 2002) .......................................... 31, 32 Tex. Beef Cattle Co. v. Green, 921 S.W.2d 203 (Tex. 1996) ............... 35, 38, 40, 41
Tex. Dep’t of Protective and Reg. Svcs. v. Mega Child Care, Inc., 145 S.W.3d 170 (Tex. 2004) ................................................................................27
Victoria Bank & Tr. Co. v. Brady, 811 S.W.2d 931 (Tex. 1991) ............................22
Warner Bros. Entm’t, Inc. v. Jones, 538 S.W.3d 781 (Tex. App.—Austin 2017) ....................................................................................44
Statutes Tex. Fam. Code Ann. § 261.106 ....................................................................... 24, 29 Tex. Fam. Code Ann. § 261.101 ....................................................................... 29, 30 Tex. Hum. Res. Code Ann. § 40.002 .......................................................................26 Rules Tex. R. App. P. 25.1...................................................................................................x Tex. R. Civ. P. 329b ................................................................................................. ix
vi
RECORD REFERENCES
The Clerk’s Record consists of one volume. References are in the form of “CR [page].”
The Reporter’s Record consists of fourteen volumes. References are in the form of “[Volume] RR [page]”.
vii
STATEMENT OF THE CASE
Nature of the case This appeal concerns malicious prosecution and abuse of process claims brought by Leith Labrado (Leith) and his brother, Laboe Labrado (Laboe) (collectively, Appellees), against Leith’s wife, Vanessa Velez Labrado (Vanessa).1 Vanessa and Leith’s then-six-year-old son, Lucca, made an outcry of abuse which allegedly occurred at the hands of Laboe’s stepchildren.2 The outcry was reported to Child Protective Investigations3 (CPS), which initiated an investigation.4
The initial outcry was discussed in an affidavit made by Vanessa in support of a petition for divorce from Leith and an application for temporary restraining order to prevent Leith from having possession of Lucca and the couple’s younger daughter, Ella, which was granted.5
Approximately three weeks after the initial outcry, Lucca made additional allegations regarding the abuse during a therapy session, namely that Leith and Laboe witnessed the abuse by Laboe’s stepchildren and did nothing to protect or help Lucca and threatened him if he reported the abuse to anyone.6 These additional allegations were incorporated into an affidavit in support of two applications for protective orders regarding Leith and Laboe.7 According to Appellees, the affidavits in support of the application for temporary injunction and in the applications for protective orders contained various untrue statements which the divorce court relied upon in issuing 1 CR 22-28.
2 10 RR 11-14.
3 Child Protective Investigations is the entity formerly named Child Protective Services and is widely referred to in the record as “CPS.” Accordingly, the term “CPS” is also used in this Brief. 4 9 RR 66.
5 9 RR 30-31, 37-43; 12 RR 57-58.
6 12 RR 77-79.
7 12 RR 77-99.
viii
orders that prevented Leith and Laboe from having access to Lucca and Ella and prevented Leith from living at the marital residence.8 The subsequent allegations against Laboe, who owns Three R’s School, LLC (the Daycare), also necessitated an investigation by the daycare licensing arm of the Department of Family and Protective Services.9 Leith and Laboe10 sued Vanessa for malicious civil prosecution regarding the allegations made to CPS, and for abuse of process regarding the temporary restraining order and the subsequent protective orders. The Daycare was also named as a plaintiff in the trial court but is not a party to this appeal.
Course of proceedings Appellees and the Daycare filed their petition on November 9, 2021.11 The case went to a jury trial on January 26, 2024.12 Ten of the twelve jury members returned a verdict in favor of Leith and Laboe on their respective claims for malicious prosecution and awarded mental anguish damages of $250,000 and $25,000, respectively.13 The jury also returned a verdict in favor of Leith and Laboe on their respective claims for abuse of process and awarded actual damages of $500,000 and $25,000, respectively.14 The jury did not find any liability against Vanessa for the claims made by the Daycare.15 The jury likewise did not make a unanimous finding of exemplary damages.16
8 See 8 RR 77-78.
9 14 RR 54.
10 The underlying case contained a third plaintiff, Three R’s School, LLC (the School), which did not obtain judgment in its favor at the trial court and is not a party to this appeal. 11 CR 8.
12 6 RR 1.
13 CR 2466-67.
14 CR 2470-71.
15 CR 2468, 2473.
16 CR 2474-76.
ix
Trial court disposition The trial court entered judgment on April 11, 2024, based upon the jury’s verdict.17 The amount awarded to Leith in actual damages was $750,000, plus prejudgment interest, which totaled $904,390.60, plus postjudgment interest to accrue.18 The amount awarded to Laboe was $50,000, plus prejudgment interest, which totaled $60,289.76, plus postjudgment interest to accrue.19 Vanessa filed a motion for new trial on May 10, 2024,20 which was overruled by operation of law on July 24, 2024. See Tex. R. Civ. P.
329b. This appeal followed.21
17 CR 2586.
18 CR 2585-86.
19 CR 2586.
20 CR 2599.
21 CR 2635.
x
STATEMENT OF JURISDICTION This Court has jurisdiction to consider this appeal of a final judgment under Tex. R. App. P. 25.1.
xi
STATEMENT ON ORAL ARGUMENT Appellant believes this appeal involves straightforward matters of settled case law and oral argument is not necessary to decide the issues at hand. If, however, the Court feels otherwise and sets this matter for oral argument, Appellant would like the opportunity to participate.
xii
ISSUES PRESENTED
1. Vanessa conclusively proved her defenses of absolute immunity through the judicial-proceedings privilege and statutory immunity under Section 261.106 of the Texas Family Code.
2. The evidence was legally insufficient to support the jury’s finding of liability against Vanessa for malicious prosecution of a civil claim and the trial court erred as a matter of law entering judgment against Vanessa based on that erroneous verdict.
3. The evidence was legally insufficient to support the jury’s finding of liability against Vanessa for abuse of process and the trial court erred as a matter of law entering judgment against Vanessa based on that erroneous verdict.
4. There is legally insufficient evidence in the trial record to support the jury’s answers regarding damages.
xiii
STATEMENT OF FACTS
I. Introduction.
The facts of this case revolve around two families: the Labrado family and the Velez family.22 As a preliminary matter, introduction to the members of those families sets the scene of the events which later unfold.
Vanessa Velez Labrado (Vanessa or Appellant) is the mother of Lucca and Ella. Vanessa is the director and nurse practitioner for the Child Abuse Resource Education and Services clinic, also known as the CARES Clinic, for El Paso Children’s Hospital.23 She has a Master of Science degree in pediatric nurse- practitioner, a doctor of nursing practice, and a postdoctoral degree in forensic nursing.24 Vanessa currently resides with her mother, Lourdes Velez (Lourdes), Lucca, and Ella, at Lourdes’s residence.
Lucca is approximately four years older than Ella.25 At all times pertinent to this case, he attended school at Loretto Academy.26 Richard Velez (Richard) is Lourdes’s son and Vanessa’s brother.27 Richard previously resided in Chicago and would stay at Lourdes’s home when visiting El
22 Because many of the persons involved in this case have a common last name, Appellant’s Brief refers to members of the Velez and/or Labrado families by their first names for purposes of clarity. 23 9 RR 25.
24 9 RR 26.
25 7 RR 97.
26 9 RR 31.
Paso.28 He has since returned to El Paso to live and owns two local businesses, including a martial arts academy.29 Vanessa is married to Leith Labrado (Leith).30 Until the allegations of abuse were made, Leith lived with Vanessa at the couple’s jointly-owned residence (the Blacker residence). Leith is Lucca and Ella’s father. Leith sells used clothing in El Paso.31 Leith’s brother is Laboe Labrado (Laboe). Laboe owns and operates Three R’s School, LLC (the Daycare),32 a daycare center started by his parents.33 Laboe was in a long-term relationship with Melissa Dozal, who has two children, Nahomy and Damian.34 Nahomy and Damian are generally referred to between the Velez and Labrado families as Lucca and Ella’s cousins (or occasionally stepcousins) and Laboe’s children,35 although they are not related by blood or marriage.36 Nahomy and Damian are several years older than Lucca and Ella.37
27 10 RR 7.
28 10 RR 7.
29 10 RR 5.
30 7 RR 45.
31 7 RR 43.
32 7 RR 45.
33 7 RR 42.
34 7 RR 147.
35 7 RR 64.
36 7 RR 147.
37 7 RR 147.
II. The Initial Outcry and CPS Investigation.38 On Friday, November 8, 2019, six-year old Lucca was playing with his maternal uncle, Richard, who was in town visiting from Chicago.39 Richard, who practices martial arts,40 asked Lucca if he wanted to learn a new martial arts move.41 Lucca declined and then became very upset.42 The following day, Saturday, November 9, 2019, after Lucca attended practice for a golf tournament,43 Richard took Lucca shopping for a video game while Vanessa attended a work event that evening.44 During their time together, Richard asked Lucca why Lucca had gotten so upset the prior evening.45 At that time, Lucca made an outcry of abuse (the Initial Outcry) to Richard regarding various actions by Damian and Nahomy.46 After speaking with Lucca, Richard texted Vanessa and told her he needed to speak to her.47 Vanessa left the work event and went to Lourdes’s home
38 The testimony at trial contains some discrepancies and/or misstatements of dates regarding the exact timeline of events. Appellant has endeavored to clarify any discrepancies based upon the documentary evidence in the trial exhibits. 39 9 RR 63.
40 10 RR 5.
41 9 RR 60.
42 9 RR 58.
43 9 RR 64.
44 9 RR 65, 69.
45 9 RR 65-66.
46 10 RR 11-14.
47 9 RR 65.
where Richard was staying and Lucca was spending the night.48 Richard then told Vanessa about the Initial Outcry.49 Sunday, November 10, 2024, Lucca competed in a golf tournament.50 Vanessa chose not to speak with Lucca about the Initial Outcry that day, and did not mention it to Leith.51 On Monday, November 11, 2024, while traveling with Vanessa to Walmart, Lucca asked Vanessa, “Has my nino [Richard] told you what I told him?”52 Vanessa answered that Richard had not shared any information with her because Vanessa did not want Lucca to feel like Richard had broken Lucca’s trust, and she also wanted to hear from Lucca in his own words.53 Lucca then stated, “I have something to tell you, but I want nino to be there.”54 Richard met Vanessa and Lucca at a restaurant and discussed the substance of the Initial Outcry.55 The discussion consisted of Vanessa asking questions, Richard giving information about what Lucca told him, and Lucca “chiming in.”56 Lucca also relayed to
48 9 RR 66.
49 9 RR 66.
50 9 RR 70.
51 9 RR 70, 72.
52 9 RR 70, 74.
53 9 RR 74-75.
54 9 RR 74.
55 9 RR 77.
56 9 RR 78.
Vanessa that he had told Leith about the substance of the Initial Outcry previously and Leith told him not to tell Vanessa or else he would “make [Lucca] pick up the dog poop for a year.”57 Richard reported the Initial Outcry to CPS on November 11, 2019, after his discussion with Vanessa and Lucca,58 and CPS opened an investigation on Tuesday, November 12, 2019.59 The same day the CPS Investigation commenced, Vanessa sent Leith a text message notifying Leith that CPS had been called.60 That afternoon, Leith and his business attorney, David Leffman (Leffman), arrived at Leith and Vanessa’s home for the CPS interviews.61 Leith and Leffman waited outside while the CPS investigator concluded her interview with Vanessa.62 Following Vanessa’s interview, Leith was interviewed.63 He learned that the allegations in the CPS Investigation involved Nahomy and Damian twisting Lucca’s arm behind his back and grabbing his genitals.64 Thereafter, he was not told by CPS that he had to leave his house and he spent the night at the Blacker
57 9 RR 80.
58 9 RR 66.
59 13 RR 19 (Pls.’ Ex. 17).
60 7 RR 70.
61 7 RR 71.
62 7 RR 72.
63 7 RR 73.
64 7 RR 74.
residence.65 Records of the CPS Investigation were admitted at trial as evidence.66 Richard is listed as the Reporter.67 Richard described the incident with the martial arts move on November 8.68 He explained that Lucca had told him he got upset because he was worried Richard would hurt him while doing the move.69 Richard said he apologized to Lucca and asked if there was someone else who hurt him, to which Lucca replied his cousins (Nahomy and Damian).70 Lucca described that when he was at the Daycare working on homework, Damian would grab Lucca by his neck and arm and Nahomy would grab his other arm and twist it behind him.71 Lucca also reported to Richard that Damian punched Lucca in the genitals and pulled and twisted his genitals hard on top of his clothing.72 While this was happening, Nahomy put her hand over Lucca’s mouth to prevent him from screaming, even though Lucca was crying and screaming for help.73 Lucca said he ran to tell Leith about the incident but Laboe was with Leith and Lucca is scared of
65 7 RR 73.
66 See 13 RR 1-183; 14 RR 5-74.
67 14 RR 10.
68 14 RR 10.
69 14 RR 10.
70 14 RR 10.
71 14 RR 10.
72 14 RR 10.
73 14 RR 10.
Laboe.74 Lucca reported being scared of Laboe because Laboe pulled his hair while they were golfing and told Lucca to keep his head down.75According to Richard’s report of Lucca’s outcry, it hurt Lucca all day when his hair was brushed.76 He also reported that his genitals are red and swollen and it hurts to sit down, pee, or shower.77 According to Richard’s report of the outcry, the incidents with his cousins have happened four to six times.78 The other incidents were similar as the one reported in detail.79 Lucca reported that multiple times, his genitals were grabbed over his clothes and it was painful.80 Lucca denied any sexual contact or oral sex by his cousins in his account to Richard.81 When CPS interviewed Lucca about the Initial Outcry, Lucca’s recounting of the Initial Outcry was largely as reported by Richard.82 Lucca claimed he had never spoken about the incidents with his stepcousins with Leith, Laboe, or this stepcousins’ mother, Melissa.83 He stated that he is afraid of Laboe because he is
74 14 RR 10.
75 14 RR 10.
76 14 RR 10.
77 14 RR 10.
78 14 RR 10.
79 14 RR 10.
80 14 RR 10.
81 14 RR 10.
82 14 RR 18.
83 9 RR 81.
mean to him, pulls his hair, and hits him in the arm and the chest.84 He also denied other inappropriate touching by any other person.85 He stated that he liked that his dad is always silly, but stated a number of things he did not like about his dad, like how he cusses at him while playing golf, at home and the office, and sometimes “in the truck.”86 He reported that sometimes his dad would sneak up on him and push him off the couch for no reason other than “just to be mean to him.”87 When his mom has seen this happen, Lucca reported that she would take him and Ella to stay at Lourdes’s house or his “nino’s house.” 88 CPS interviewed numerous persons in their investigation, the totality of which is too voluminous to detail here. Interviews of Vanessa, Leith, and Lucca occurred at the Blacker residence on November 12, 2019. Vanessa reported to CPS that she had previously told Leith she did not want Lucca around Damian and Nahomy and believed Leith had agreed to keep them apart, but apparently Leith had still been taking him to the Daycare where they were.89 Vanessa reported that Leith does sometimes cuss at Lucca and pushes him off the couch.90
84 14 RR 18.
85 9 RR 82.
86 14 RR 17.
87 14 RR 18.
88 14 RR 18.
89 14 RR 21.
90 14 RR 21.
When CPS investigators interviewed Leith, he laughed at the allegations made by Lucca in the outcry.91 Leith denied the allegations and claimed he “always keeps his eye on his son when they are at the daycare.”92 He claimed the children were just wrestling and “it never gets to that extent.”93 He denied the extent of the allegations against Laboe about pulling Lucca’s hair and telling him to keep his head down.94 He denied ever pushing Lucca off the couch and admitted to cussing at Lucca the previous weekend but denied doing it regularly.95 On November 15, 2019, CPS filed an information report with the El Paso Police Department (EPPD) Crimes Against Children (CAC) unit.96 The CPS investigator was informed by EPPD that the criminal elements for an investigation by the CAC were met because “if the child felt pain, then it’s injury to a child[.]”97 Thereafter, CPS was precluded from taking any further action in their investigation because they were required to defer to law enforcement to conduct any further witness interviews.98 The case was assigned to Detective Adriana Zamora with CAC on
91 14 RR 22.
92 14 RR 18.
93 14 RR 22.
94 14 RR 22.
95 14 RR 22.
96 14 RR 23-24.
97 14 RR 23.
98 14 RR 24; 8 RR 107-08.
November 21, 2019.99 On December 5, 2019, Lucca was interviewed by El Paso Police Officer Max Zimmerly with the CAC regarding the Initial Outcry.100 CPS investigator Yvette Garcia took notes regarding the interview.101 Garcia’s notes state that Lucca
reported his cousins pulled his pants down and laughed at him. Child reported his underwear were on when his pants were pulled off. Child reported his female cousin hurt his penis but did not make outcry of sexual abuse. Child reported he was afraid of his uncle but did not provide details as to why. Child reported he was afraid of father but did not provide details as to why.102
On December 5, 2019, the case was referred to the District Attorney’s office.103 The CPS investigator was informed “it was believed there was not enough evidence for a criminal case of injury to child or sexual abuse[, but] Detective said she would staff case with supervisor since child did say he was afraid[.]”104 Interviews with the cousins, father and paternal uncle by the CAC were planned.105 On December 10, 2019, Detective Zamora called CPS and informed CPS that “child made another outcry [to Vanessa] that paternal uncle grabbed his
99 14 RR 25.
100 9 RR 98; 14 RR 25-26.
101 14 RR 25.
102 14 RR 25-26 103 14 RR 26.
104 14 RR 26.
105 14 RR 26.
genitals.”106 Detective Zamora “advised [Vanessa] to put [Lucca] into counseling and when child is ready to speak and give more details then they will invite child for another interview.”107 Detective Zamora advised that she was “inactivating case until [Lucca] can provide a better outcry. . . . She stated [CPS] was not to interview any perpetrators on case since they are still pending interviews themselves if child makes a detailed outcry when he is ready.”108 By law, CPS was required to close its investigation within 30 to 45 days of being opened.109 Because, at that time, CPS had not been able to obtain additional information from witnesses concerning the Initial Outcry, CPS issued an “Unable to Determine” finding on the CPS Investigation and it was administratively closed on December 10, 2019.110 III. The Temporary Restraining Order and the Protective Orders Vanessa filed her petition for divorce in County Court at Law Number Five (the Divorce Court) on November 14, 2019 (the Divorce Proceedings).111 Her petition contained a request for temporary restraining order and included an affidavit executed by Vanessa describing a history of incidents where Vanessa
106 14 RR 26.
107 14 RR 26.
108 14 RR 26.
109 8 RR 108.
110 8 RR 108.
111 9 RR 28.
expressed concern over Lucca’s treatment by his stepcousins, and her requests to Leith to keep Lucca away from them for his safety (the TRO Affidavit).112 The TRO Affidavit also described Leith’s dismissing of Vanessa’s concerns for Lucca’s safety, and incidents of verbal abuse by Leith toward Vanessa.113 The TRO Affidavit requested that the Divorce Court issue a temporary restraining order preventing Leith from picking up Lucca and Ella so that they would not be brought around their stepcousins.114 On November 14, 2019, the Divorce Court entered the temporary restraining order (the TRO) which, among other things, prevented Leith from access to his children during the pendency of the TRO.115 Leith was served with the TRO on November 22, 2019.116 The TRO was subsequently extended and a hearing on the TRO was set for December 6, 2019, at 3:00 p.m.117 On December 5, 2019, after his interview with Officer Zimmerly, Lucca informed Vanessa that he had told Officer Zimmerly that “on several occasions, as punishment, Leith would pick him up and raise him over his head and then would drop him causing him to hit the ground hurting him. Lucca also told me that his uncle Laboe has grabbed his testicles on more than one occasion, in the presence of
112 9 RR 30-31, 37-43; 12 RR 57-58.
113 See id.
114 12 RR 57-59.
115 12 RR 68-76.
116 7 RR 115, 118.
117 12 RR 152-161.
his father, and his father did not protect him.”118 On December 6, 2019, ahead of the hearing on the TRO at 3:00 p.m., Vanessa, at the direction of her divorce attorney, executed a second affidavit. The allegations reported to Officer Zimmerly on December 5, 2019, among others, were included in a December 6, 2019 affidavit executed by Vanessa. The second affidavit was attached in support of two applications for protective order filed the same day, requesting, among other things, that Leith and Laboe be prevented from having contact with Lucca or Ella, and that Leith be removed from the family residence.119 The same day, the Divorce Court entered temporary ex parte protective orders granting the relief sought by Vanessa in her application for same and set a hearing for January 2, 2020 (the Protective Orders).120 The Protective Orders were replaced and superseded by agreed temporary interim orders signed by Leith and Vanessa on January 2, 2020 (the Agreed Orders).121 In the Agreed Orders, Leith agrees that his access to his children will be limited to electronic communications until further order of the Divorce Court, and that Laboe is precluded from having access to Lucca and Ella without either Leith or Vanessa
118 12 RR 78 119 12 RR 77-79.
120 12 RR 100-117 (Pls.’ Ex. 6).
121 7 RR 115-17, 126-27. Counsel for Appellant in the trial court moved to admit Plaintiffs’
Exhibit 102, the agreed temporary interim orders, into evidence, which the trial court granted. See id. at 115. The jury viewed these orders as trial evidence. See id. However, that exhibit is not included in the reporter’s record of the trial exhibits on appeal. A copy of these orders were attached to Vanessa’s motion for summary judgment before the trial court, CR 211-217.
present.122 The Agreed Orders also assign Lydia Kasmoch (Kasmoch), a therapist, to begin reunification therapy between Lucca and each of his parents.123 IV. The March Outcry On March 11, 2020, Kasmoch reported an outcry Lucca made to her during a therapy session on March 6, 2020 (the March Outcry).124 Kasmoch acknowledged that Lucca has not seen Leith since November of 2019.125 Lucca reported that Leith picks on him and he doesn’t like it, that Leith treats him badly, Laboe pulls Lucca’s pants on and off hard, and “squeezes [Lucca’s] penis so hard it gets big and it hurts so bad [Lucca] can’t go to the restroom.”126 Lucca also reported that Leith, Laboe, Damian and Nahomy “all touched [Lucca] with his pants down and pinch [his] front privates.”127 Kasmoch acknowledged that Lucca does not have any access to Leith, Laboe, Damian or Nahomy at the time of the March Outcry.128 CPS interviewed Lucca following the March Outcry, on March 14, 2020. In the interview, Lucca claimed he was afraid of his father because he had done “bad
122 CR 211-217.
123 CR 211-217.
124 14 RR 36.
125 14 RR 36.
126 14 RR 36.
127 14 RR 36.
128 14 RR 36.
stuff” to Lucca “almost every day.”129 Lucca claimed Leith was hurting Vanessa, Ella and Lucca, and had been punching him all over his body.130 Lucca said that Leith would cuss at him and Vanessa.131 Lucca also described detailed, graphic accounts of frequent violent touching of his penis by Leigh, Laboe, and his stepcousins.132 Lucca stated that these incidents occurred at Laboe’s house or at the Daycare.133 On March 18, 2020, Detective Zamora informed CPS that the investigation is still on hold until more detailed allegations are made to Kasmoch.134 If additional interviews were needed by CPS, they would be informed as such by Detective Zamora.135 V. The April Outcry On April 7, 2020, Vanessa contacted CPS about an outcry Lucca made to Lourdes on April 5, 2020 (the April Outcry).136 The April Outcry was merged into the CPS Investigation (reflected in the matching case numbers).137 Vanessa
129 14 RR 48.
130 14 RR 48.
131 14 RR 48.
132 14 RR 48.
133 14 RR 48.
134 14 RR 50-51.
135 14 RR 51.
136 14 RR 39.
137 See 14 RR 37.
reported that Lucca first told Lourdes, and then told her, that Leith and Laboe “would put their fingers in his butt and that it would hurt. . . . Lucca also mentioned they would put gloves on (from the kitchen) before putting their finger in his butt.”138 He claimed they would throw him to the ground, straddle him, remove his pants and underwear, and then stick their fingers into his butt.139 Lucca also claimed they took nude photos and video of him, and would make him repeat profanities on video while pointing at the camera.140 He further claimed that they would post these pictures and videos online.141 Lucca claimed that he also witnessed Leith and Laboe hurting Damian and Nahomy, and stated “the same thing happens to them,” but it was unclear to Vanessa whether they were being sexually abused.142 When the CAC determined no additional contact had occurred between Lucca and Leith, Laboe, or his stepcousins as it related to the allegations in the March and April 2020 Outcries, law enforcement declined to do a second forensic interview.143 Detective Zamora confirmed that unless Lucca made a new outcry to
138 14 RR 39.
139 14 RR 39.
140 14 RR 39.
141 14 RR 39.
142 14 RR 39.
143 14 RR 40-41.
Kasmoch, a new forensic interview will not be scheduled.144 The CPS Investigation was administrative closed.145 VI. The Daycare Investigation Concurrent with the CPS Investigation, the Department of Family and Protective Services (DFPS) Care Center Licensing (CCL) department was conducting an investigation into the allegations that some of the abuse alleged by Lucca occurred at the Daycare (the Daycare Investigation).146 The Daycare Investigation “intake” occurred on April 7, 2020.147 The Daycare Investigation was made regarding the Daycare for purposes of determining whether the Daycare has failed to meet minimum licensing standards.148 As part of their investigation, CCL interviewed Laboe, Nahomy, Melissa Dozal, Leith, and several daycare clients, “collaterals,” and staff members.149 The CCL employee conducting the Daycare Investigation was Luis Ceballos.150 Details regarding Ceballos’s investigation are
144 14 RR 53.
145 14 RR 40-41.
146 14 RR 54.
147 13 RR 148.
148 8 RR 204-06.
149 14 RR 54.
150 14 RR 54.
contained within the CPS records.151 Mr. Ceballos concluded his investigation on April 9, 2020, and determined there were no concerns he had with the Daycare.152
151 13 RR 148-151.
152 14 RR 54.
SUMMARY OF THE ARGUMENT
This appeal is factually dense and involves a considerably lengthy record. It also involves heartbreaking allegations of emotional, physical and sexual abuse, and puts a family’s apparent discord on display. However, when the issues on appeal are examined apart from the drama that accompany them, this Court will find straightforward matters of law clearly established by the evidence at trial that mandates reversal of the trial court’s judgment.
There are two Appellees and each has two causes of action at issue in this appeal. Leith and Laboe each brought a claim for malicious prosecution of a civil claim against Vanessa based on initiating or continuing “administrative proceedings” with CPS—the CPS Investigation—and the CCL—the Daycare Investigation.153 They also each brought a claim for abuse of process. Leith’s cause of action for abuse of process was based on the TRO and the Protective Order, which he claims were fraudulently obtained by providing false information in the affidavits supporting their procurement.154 Laboe’s cause of action for abuse of process was based on the Protective Order for the same reason.155 On each of these causes of action, the jury answered affirmatively on liability against Vanessa.156
153 See CR 2450-51 (Jury Charge, Question nos. 1 and 3).
154 CR 2454 (Jury Charge, Question no. 7).
155 CR 2455 (Jury Charge, Question no. 9).
156 CR 2450-55 (Jury Charge).
There was legally insufficient evidence to support the jury’s answers finding liability against Vanessa on the malicious prosecution and abuse of process claims, and the trial court’s judgment on these causes of action must be reversed and rendered in Vanessa’s favor.
First, statements made during judicial proceedings, including affidavits, cannot form the basis of a civil cause of action as a result of the judicial- proceedings privilege. Thus, the abuse of process claims based on the TRO and Protective Orders fail as a matter of law. Additionally, statements made in the course of quasi-judicial proceedings—like the CPS and Daycare Investigations— cannot form the basis of a civil cause of action as a result of the judicial- proceedings privilege. Thus, the malicious prosecution claims based on the CPS and Daycare Investigations fail as a matter of law.
Furthermore, the evidence at trial conclusively proves that Vanessa established her affirmative defense of immunity under Section 261.106 of the Texas Family Code as a matter of law. The record at trial demonstrates that Vanessa met the standard of good faith reporting of the abuse allegations and Appellees failed to overcome that showing as a matter of law. Therefore, Appellees’ cause of action for malicious prosecution based on the CPS Investigation fails as a matter of law.
Second, there was legally insufficient—that is, no evidence—of one or more essential elements of Appellees’ malicious prosecution claims. If the Court determines that the CPS Investigation was not quasi-judicial for purposes of the judicial-proceedings privilege, then for the same reason it cannot qualify as an “administrative proceeding” to satisfy the definition of “civil proceedings” in a malicious prosecution claim. The evidence was legally insufficient to prove that the investigations were instituted or continued by Vanessa or at her insistence. And there was simply no evidence at trial of special injury suffered by the Appellees as a result of the CPS or Daycare Investigations.
Third, there was legally insufficient evidence of one or more essential elements of Appellees’ abuse of process claims. Appellees failed to plead legally sufficient evidence that Vanessa made improper use of service through the TRO or the Protective Orders after their issuance. For the same reasons, they failed to prove an ulterior motive other than the purpose expressly provided for within the respective orders.
Finally, Appellees failed to present a shred of evidence regarding the existence or amount of damages the jury awarded to them on their causes of action. Rather, Appellees impermissibly offered up a blank slot for the jurors to fill in without providing any basis for what amount might compensate them for their
alleged damages. They likewise failed to sufficiently articulate the type, existence, or duration of damages necessary in awards of non-economic damages.
For all the foregoing reasons, Appellant Vanessa Velez Labrado asks this Court to strike the jury’s findings on questions 1, 2, 3, 4, 7, 8, 9, and 10 regarding Appellees claims for malicious prosecution of a civil claim and abuse of process; to reverse the judgment of the trial court and render take-nothing judgment in her favor on all of Appellees’ claims against her.
ARGUMENT
I. Standards of Review.
Immunity Defenses.
“A party attempting to overcome an adverse fact finding as a matter of law must surmount two hurdles. First, the record must be examined for evidence that supports the [fact finder’s] finding, while ignoring all evidence to the contrary. Second, if there is no evidence to support the fact finder’s answer, then, the entire record must be examined to see if the contrary proposition is established as a matter of law.” Victoria Bank & Tr. Co. v. Brady, 811 S.W.2d 931, 940 (Tex. 1991) (quoting Sterner v. Marathon Oil Co., 767 S.W.2d 686, 690 (Tex. 1989)).
Legal Sufficiency.
A party attacking the legal sufficiency of an adverse finding on an issue in which it did not have the burden of proof “must demonstrate on appeal that no evidence exists to support the adverse finding.” Arcides v. Rojas, 677 S.W.3d 154,
158 (Tex. App.—El Paso 2023, no pet.) (citing Graham Cent. Station, Inc. v. Pena, 442 S.W.3d 261, 263 (Tex. 2014). A reviewing court must “consider the evidence in the light most favorable to the verdict and indulge every reasonable inference that would support it.” Id. at 158-59. (citing City of Keller v. Wilson, 168 S.W.3d 802, 822 (Tex. 2005).
“Anything more than a scintilla of evidence is legally sufficient to support the fact finder's finding.” Sanders Oil & Gas, Ltd. v. Big Lake Kay Constr., Inc., 554 S.W.3d 79, 93 (Tex. App.—El Paso 2018, no pet.). “The ultimate test for legal sufficiency is whether the evidence at trial would enable reasonable and fair- minded people to reach the verdict under review.” Arcides, 677 S.W.3d at 159 (citing E. Tex. Educ. Ins. Ass'n v. Ramirez, 631 S.W.3d 908, 918 (Tex. App.—El Paso 2021, pet. denied)).
II. Vanessa conclusively proved her defenses of absolute immunity through the judicial-proceedings privilege and statutory immunity under Section 261.106 of the Texas Family Code.
In this case, Appellees’ causes of action for malicious civil prosecution were based on initiating or continuing “administrative proceedings” with CPS—the CPS Investigation—and the CCL—the Daycare Investigation.157 Leith’s cause of action for abuse of process was based on the TRO and the Protective Order, which he claims were fraudulently obtained by providing false information in the affidavits
157 See CR 2450-51 (Jury Charge, Question nos. 1 and 3).
supporting their procurement.158 Laboe’s cause of action for abuse of process was based on the Protective Order for the same reason.159 In other words, Appellees claims are based solely on Vanessa’s statements to CPS and her sworn statements in the TRO Affidavit and the PO Affidavit.
Vanessa’s statements are all subject to the judicial proceedings privilege and cannot be the basis for a claim in tort as a matter of law. Moreover, Vanessa is immune from civil liability for the statements she made to CPS regarding the alleged abuse to Lucca under Section 261.106 of the Texas Family Code (Section 261.106). See Tex. Fam. Code Ann. § 261.106. This brief addresses each immunity defense in turn.
In this case, the jury was not afforded an opportunity to make a separate finding of fact regarding either the judicial-proceedings privilege or immunity under Section 261.106. Vanessa’s Second Proposed Jury Questions and Instructions to the trial court included both instructions on the definition of good faith and a separate fact question regarding whether she acted in good faith in making her statements to CPS regarding the alleged abuse.160 Defense counsel likewise objected to the failure to include the instruction and question on
158 CR 2454 (Jury Charge, Question no. 7).
159 CR 2455 (Jury Charge, Question no. 9).
160 See CR 2380-81 (instructions regarding good faith), 2385-86 (Question nos. 10 and 11).
immunity.161 Furthermore, the issue was raised in Vanessa’s Motion for New Trial.162 The trial court erred in failing to adequately instruct the jury on either immunity under Section 260.106 or the judicial-proceedings privilege.
A. The evidence adduced at trial conclusively proves Vanessa’s affirmative defense of absolute immunity pursuant to the judicial-
proceedings privilege to the malicious prosecution and abuse of process claims.
The judicial-proceedings privilege protects the judge, jurors, attorneys, parties, and witnesses from any type of liability in tort arising out of statements made during any part of a judicial proceeding, including statements made “in serious contemplation of such a proceeding.” Landry’s, Inc. v. Animal Legal Def. Fund, 631 S.W.3d 40, 46 (Tex. 2021) (quoting Cantey Hanger, LLP v. Byrd, 467 S.W.3d 477, 485 n.12 (Tex. 2015) (internal citation omitted)). “[T]he absolute immunity of parties and witnesses from subsequent liability for their testimony in judicial proceedings is well established.” Laub v. Pesikoff, 979 S.W.2d 686, 689 (Tex. App.—Houston [1st Dist.] 1998, pet. denied) (citing Briscoe v. LaHue, 460 U.S. 325, 331-32 (1983)). “Any communication, even perjured testimony, made in the course of a judicial proceeding, cannot serve as the basis for a suit in tort.” Id. (citing Bird v. W.C.W., 868 S.W.2d 767, 771 (Tex. 1994)) (emphasis added). The types of communications and statements covered by the privilege include
161 See 11 RR 24-31.
162 CR 2604-05.
“affidavits and any of the pleadings or other papers in the case.” Landry’s, Inc., 631 S.W.3d at 46 (citing James v. Brown, 637 S.W.2d 914, 916 (Tex. 1982)).
Absolute immunity also extends to statements made in quasi-judicial proceedings with quasi-judicial bodies. See Reagan v. Guardian Life Ins. Co., 166 S.W.2d 909, 912-13 (Tex. 1942) (the Board of Insurance Commissioners was a quasi-judicial body regulating licensing of insurance agents); Aransas Harbor Terminal R.R. Comm’n v. Taber, 235 S.W. 841, 842 (Tex. Comm'n App. 1921) (letters concerning an investigation by the Texas Railroad Commission were covered by the judicial-proceedings privilege). This Court has previously posited that employees of CPS exercise quasi-judicial positions “requir[ing] personal deliberation, decision, and judgment,” . . . “such as gathering information in connection with an investigation and making decisions based upon that information.” Gonzalez v. Avalos, 866 S.W.2d 346, 349 (Tex. App.—El Paso 1993, writ dism’d w.o.j.). Quasi-judicial power is defined as “an administrative agency’s power to adjudicate the rights of those who appear before it.” Quasi- Judicial Power, Black’s Law Dictionary (10th ed. 2014).
The DFPS, which includes CPS, is a state agency which provides, among other services, “protective services for children…, including investigations of alleged abuse, neglect, or exploitation[.]” Tex. Hum. Res. Code Ann. § 40.002. Additionally, the Texas Supreme Court has described the Department of Protective
and Regulatory Services, DFPS’ predecessor entity, as “a state agency subject to the Administrative Procedures Act.” See Tex. Dep’t of Protective and Reg. Svcs. v. Mega Child Care, Inc., 145 S.W.3d 170, 173 (Tex. 2004). Additionally, CPS officials have the authority and responsibility to investigate claims of child abuse and, in exigent circumstances, are authorized to remove a child from her home when exigent circumstances warrant such removal. See, e.g., Martin v. Tex. Dep’t of Protective and Reg. Svcs., 405 F.Supp.2d 775, 789 (S.D. Tex. 2005); In re R.A., 346 S.W.3d 691, 697 (Tex. App.—El Paso 2009, no pet.).
Here, Appellees’ causes of action were based upon affidavits she made in the Divorce Proceedings attached to her Application for Temporary Restraining Order and a subsequent Ex Parte Protective Order.163 Appellant notes, for the Court’s consideration, that according to their Original Petition (the live pleading on file at the time of trial), Appellees base their causes of action for malicious prosecution and abuse of process on the affidavits and obtaining the restraining order and/or protective order.164 However, the Charge of Court lists the CPS investigation as the basis for the malicious prosecution claims.165 This instruction
163 CR 23-26.
164 See CR 23-25.
165 See id. at 2450-51 (Jury Charge, Question nos. 1 and 3).
was made over the objection of defense counsel, who noted the pleading deficiency to the trial court.166 It is axiomatic that any cause of action based upon statements Vanessa made in the TRO Affidavit, the PO Affidavit, or other pleadings or other papers filed within the Divorce Proceedings is protected by the judicial-proceedings privilege and cannot form the basis of a civil cause of action against her. See Landry’s, Inc., 631 S.W.3d at 46. This is true even if the affidavits complained about in support of the Temporary Restraining Order and Protective Order contain perjured testimony. See Bird, 868 S.W.2d at 771.
Moreover, any statements Vanessa made to CPS in the course of the CPS Investigation constitutes a statement made in a quasi-judicial proceeding with a quasi-judicial body. See Reagan, 166 S.W.3d at 912-13; Gonzalez v. Avalos, 866 S.W.2d at 349. CPS, in conducting its investigation of the child abuse allegations first reported by Richard Velez and later to Lucca’s therapists, obtained those statements from Vanessa as a part of their information gathering duties as an administrative agency. These types of duties “require personal deliberation, decision, and judgment” and therefore qualify as quasi-judicial for purposes of determining whether the privilege applies. See id.167
166 10 RR 152-53.
167 As Appellant will address in greater detail later in this Brief, if the Court determines that the CPS Investigation of Leith and Laboe was not quasi-judicial—that is, that it does not rise to the
Appellant conclusively proved her affirmative defense of immunity under Section 261.106 of the Texas Family Code.
Vanessa likewise pleaded and proved, as a matter of law, her right to immunity from civil litigation for reporting suspected child abuse under Section 261.106 of the Texas Family Code (Section 261.106). See Tex. Fam. Code Ann. § 261.106.
The Texas Family Code places a duty on any “person having reasonable cause to believe that a child's physical or mental health or welfare has been adversely affected by abuse or neglect by any person” to immediately make a report of that abuse. See Tex. Fam. Code Ann. §261.101(a). Additionally, for licensed “professionals” in Texas, such report must be made within 48 hours of learning of the alleged abuse. Id. § 261.101(b). Section 261.106 provides, in pertinent part,
(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 otherwise be incurred or imposed. Id. § 261.101(a).
A court determining whether a defendant has acted in good faith as described in Section 261.106 should apply the same test as would be applied in an official
level of an administrative agency having the right to adjudicate the rights of the persons appearing before it—then Appellees will have failed as a matter of law to adduce legally sufficient evidence that the CPS investigation constitutes a civil proceeding instituted or continued against them as is necessary for their malicious civil prosecution claim.
immunity assessment. Chaney v. Corona, 103 S.W.3d 608, 611 (Tex. App.—San Antonio 2003, pet. denied). There is no dispute among the parties that Vanessa, as Director of the CARES Clinic and in her other roles as a health care practitioner, is a “professional” as that term is defined in the Texas Family Code Section 261.101(b). See Tex. Fam. Code Ann. § 261.101(b).168 Appellees’ counsel elicited that very testimony from Vanessa at trial:
Q. And he related to you what he claims Lucca shared with him.
Correct?
A. Correct.
Q. And you believe that to be an outcry?
A. Correct.
Q. And you told him that he needed to report it. Is that true?
A. Could you clarify “him”?
Q. Richard.
A. Yes.
Q. You could have reported it yourself. Correct?
A. No.
Q. Do you remember hearing Amanda Martinez [with CPS] say that you can't delegate when you're a professional?
168 “In this subsection, ‘professional’ means an individual who is licensed or certified by the state or who is an employee of a facility licensed, certified, or operated by the state and who, in the normal course of official duties or duties for which a license or certification is required, has direct contact with children. The term includes teachers, nurses, doctors, day-care employees, employees of a clinic or health care facility that provides reproductive services, juvenile probation officers, and juvenile detention or correctional officers.” Tex. Fam. Code Ann. § 261.101(b).
A. Yes.
Q. Do you disagree with that?
A. No.
Q. You're saying you don't have any duty as a mandatory reporter to make a report of this abuse?
A. If I am the initial individual to obtain the outcry, yes. Richard cannot delegate that to me.
Q. But once you had that information, you're a mandatory reporter nonetheless. Correct?
A. Correct.169
The test, then, in this case, is “that a reasonably prudent [professional], under the same or similar circumstances, could have believed that reporting the abuse was justified based on the information she possessed.” See Chaney, 103 S.W.3d at 611 (describing good faith test for a principal who reported suspicion of child abuse by a teacher as being whether a reasonably prudent principal under the same or similar circumstances would have found reporting the suspected abuse justified). This does not require Vanessa to prove “that it would have been unreasonable not to make the report, or that all reasonably prudent [professionals] would have made the report.” Id. (citing Telthorster v. Tennell, 92 S.W.3d 457, 465 (Tex. 2002)). Negligence on the part of the reporter does not defeat good faith; “the test is not ‘what a reasonable person would have done,’ but [instead] ‘what a reasonable
169 9 RR 66-67.
[professional] could have believed.’” Id. (quoting Telthorster, 92 S.W.3d at 465) (bracketed text substituted). Once Vanessa proved good faith, Appellees were required to “offer evidence that no reasonable [professional] in [Vanessa’s] position could have believed that the facts were such that they justified her conduct.” See id. If two professionals “of reasonable competence” could disagree about whether or not to report the outcry, Vanessa’s good faith is established as a matter of law. See id.
The record at trial is replete with evidence that reasonably prudent professionals believed reporting Lucca’s outcry to CPS was justified. CAC officers informed CPS investigators that the elements for injury to a child had been met under the facts of the case because Lucca reported pain.170 Lydia Kasmoch, Lucca’s second therapist, reported the April Outcry to CPS independently of Vanessa.171 Kasmoch testified that her reunification therapy with Leith and Lucca stopped “once the [March Outcry] [was] made and I had to make reports to various agencies.”172 Kasmoch elaborated that the requirement to report also necessitates making statements to various agencies as required when they conduct their investigations.173 She further testified that she did not suspect Lucca of “parroting”
170 14 RR 23.
171 10 RR 61-62, 67.
172 10 RR 61.
173 10 RR 61-62.
the words of someone else in the course of her therapy sessions with him, including his outcry to her, which she reported.174 Amanda Martinez, a supervisor with CPS investigations, testified that Vanessa would have a duty to report allegations of abuse as a mandatory reporter under the statute.175 Even Laboe, himself a “professional” under the statute, testified that when it comes to allegations of abuse, “Every single person who was told who has a reasonable belief that this child made this alleged – this allegation has to report, has to talk to the [CPS] intake line. … In the statute – we are trained on this. If you hear it, you have to call. You cannot delegate. You cannot rely on somebody else to call.”176 The foregoing illustrates that Vanessa proved the report was made in good faith as a matter of law. See Chaney, 103 S.W.3d at 611. Thus, the burden shifted to Appellees to “offer evidence that no reasonable [professional] in [Vanessa’s] position could have believed that the facts were such that they justified her conduct.” See id.. Appellees made no such offering in the trial court. Appellees offered expert testimony from Kamala London, Ph.D., to testify regarding the reliability of children’s reports regarding alleged abuse.177 She posited that some of Lucca’s allegations were “confabulated”—that is, fantastical and appeared blown
174 10 RR 69.
175 8 RR 135.
176 8 RR 29.
177 See 9 RR 119 et seq.
out of proportion—but even she testified, “I’m not here to criticize anyone’s mothering, you now. I think it —the way that it came about is problematic from a memory perspective. But I – I know moms and dads, you know, they alllove their kids. . . . [T]hey might do different things than if they were the professional or they’re worried or, you know, whatever.”178 She likewise failed to offer any testimony demonstrating that no professional, as that term is defined in Section 261.101, in Vanessa’s position, could have believed the facts of the various outcries such that the decision to report them was unfounded. At best, she offered testimony that no expert in developmental psychology with a specialty in forensic interviews could have believed the facts forming the basis of Lucca’s outcries.179 Appellees failed to overcome the showing of good faith and Vanessa demonstrated her Section 261.106 affirmative defense as a matter of law.
III. The evidence was legally insufficient to support the jury’s finding of liability against Vanessa for malicious prosecution of a civil claim and the trial court erred as a matter of law entering judgment against Vanessa based on that erroneous verdict.
To prevail in a suit alleging malicious prosecution of a civil claim, the plaintiff must establish: (1) the institution or continuation of civil proceedings against the plaintiff; (2) by or at the insistence of the defendant; (3) malice in the commencement of the proceeding; (4) lack of probable cause for the proceeding;
178 9 RR 157, 205.
179 See 9 RR 121-123.
(5) termination of the proceeding in plaintiff's favor; and (6) special damages. Tex. Beef Cattle Co. v. Green, 921 S.W.2d 203, 207 (Tex. 1996).
In addition to Vanessa proving her affirmative defenses of immunity as a matter of law as addressed in Section II of this Brief, Appellees failed to present legally sufficient evidence of one or more essential elements of its malicious civil prosecution claim. Specifically, there is no evidence that civil proceedings were commenced against the Appellees by virtue of the CPS investigation, there is no evidence they were instituted or continued at Vanessa’s insistence, and Appellees failed to demonstrate that Appellees suffered special damages as a result of the investigations.
A. There is no evidence that a civil proceeding was instituted or continued against the Appellees.
The threshold issue in a malicious prosecution case is the institution or continuation of a “civil proceeding” against the plaintiff. Tex. Beef, 921 S.W.2d at 207. Other than civil lawsuits, proceedings before administrative agencies may support a claim for malicious prosecution. See, e.g., Johnson v. State Bd. of Morticians, 288 S.W.2d 214, 217 (Tex. App.—Galveston 1956, no writ). Appellees argued to the jury that the CPS Investigation and the Daycare Investigation were “civil proceedings” which could support a malicious
prosecution claim.180 Both investigations were submitted to the jury in the liability questions regarding malicious prosecution and were described as “administrative proceedings.”181 The charge also included an instruction that “administrative proceedings” can support a claim for malicious prosecution.182 There is no evidence in the record at trial that Appellees posited the investigations constituted another type of “civil proceeding” other than an administrative proceeding.183 Black’s Law Dictionary defines “administrative proceeding” as “[a] hearing, inquiry, investigation, or trial before an administrative agency usually adjudicatory in nature but sometimes quasi-legislative.” Administrative Proceeding, Black’s Law Dictionary (10th ed. 2014).
As previously discussed in the prior issue, there are indications in case law and statutory law that the CPS Investigation and the Daycare Investigation constitute administrative proceedings that are quasi-judicial in nature because they determine the rights of those appearing before them. See, e.g., Martin, 405 F.Supp.2d at 789; In re R.A., 346 S.W.3d at 697. However, Appellant was unable to find case law in Texas explicitly determining that a CPS investigation standing
180 CR 2450-51.
181 CR 2450-51.
182 CR 2450-51.
183 As Vanessa’s trial counsel objected during the final jury charge conference, it was improper for the trial court to have included an implicit instruction or other indication that the CPS Investigation and the Daycare Investigation were “administrative proceedings.” 11 RR 24-31.
alone was sufficient to constitute a “civil proceeding” in a malicious prosecution of a civil claim lawsuit.184 In this case, if the Court determines that the CPS Investigation and the Daycare Investigation are administrative proceedings as the term is contemplated in a malicious prosecution claim, then it must also hold as a matter of law that Vanessa is entitled to immunity from any civil claims arising out of statements she made in those investigations as protected by the judicial-proceedings privilege. If, on the other hand, the Court determines that the CPS and Daycare Investigations are not administrative proceedings in which the judicial-proceedings privilege applies, then it necessarily must also find that Appellees failed to adduce legally sufficient evidence of the institution of a civil proceeding necessary to support a claim for malicious civil prosecution.
In addition, for purposes of supporting the malicious prosecution claims, the Daycare Investigation was not instituted against Leith or Laboe; it was instituted solely regarding the Daycare in the context of licensing issues.185 There is simply no evidence to support any finding by the jury that the Daycare Investigation could
184 Relying on a CPS investigation as the basis for a claim of malicious criminal prosecution is a more common occurrence. See, e.g., Alvarez v. Anesthesiology Assoc., 967 S.W.2d 871 (Tex. App.—Corpus Christi-Edinburg 1998, pet. denied); Howard v. White, No. 05-01-01036-CV, 2002 WL 1470071 (Tex. App.—Dallas Jul. 10, 2002, no pet.). 185 8 RR 204-06.
form the basis of a malicious prosecution claim against one of the individual Appellees.
B. There is no evidence the proceeding was instituted or continued by Vanessa or at Vanessa’s insistence.
The second element of a malicious prosecution claim is that the civil proceeding was instituted or continued by Vanessa or at her insistence. See Tex. Beef, 921 S.W.2d at 207.
It is undisputed that Richard was the initial reporter of the Initial Outcry to CPS on November 11, 2019.186 There is no evidence in the record at trial that Richard was not the initial reporter to CPS. He testified that he and Vanessa agreed that he, as the initial recipient of the outcry, needed to report the matter to CPS.187 The CPS Investigation was then administratively closed on December 10, 2019.188 The next record of a reported outcry from Lucca was the March Outcry Kasmoch reported to CPS on March 11, 2020. CPS began its investigation into the March Outcry allegations.189 While the CPS Investigation into the March Outcry
186 14 RR 10.
187 9 RR 66.
188 8 RR 108.
189 14 RR 46-54.
reported by Kasmoch was still open, Vanessa reported the April Outcry to CPS.190 The CPS Investigation was administratively closed on April 12, 2020. 191 The evidence at trial is legally insufficient to support the jury’s finding that Vanessa instituted or continued the CPS Investigation against Leith and Laboe, or that it was instituted or continued at her insistence. Rather, the evidence conclusively demonstrates that the only report of new abuse Vanessa made to CPS was regarding the April Outcry while the CPS Investigation regarding the March Outcry was already pending.192 Just a few days later, on April 12, 2020, the CPS Investigation was again administratively closed as unable to determine.193 Regarding the Daycare Investigation, the only evidence adduced at trial regarding how the investigation against the Daycare was instituted came from Luis Ceballos, an investigator for the CCL.194 Ceballos testified that if allegations of abuse name an owner, director or employee of a daycare, a companion case investigating the daycare is automatically created under the CCL’s purview.195 He confirmed such was the case when the Daycare Investigation was opened; it was automatically created by DFPS as a companion case after allegations were made
190 14 RR 52.
191 14 RR 54.
192 14 RR 52.
193 14 RR 54.
194 8 RR 211.
195 8 RR 211-213.
against Laboe in the CPS Investigation.196 Thus, the evidence at trial conclusively proves Vanessa did not institute or continue either the CPS or the Daycare Investigation against Leith or Laboe.
C. There is no evidence Appellees suffered special injury as a result of the proceeding.
Finally, Appellees failed to demonstrate special injury as a result of the Investigations. To obtain damages for malicious prosecution of a civil claim, a plaintiff must first prove he has sustained a “special injury;” that is, he must prove he “suffer[ed] some interference, by reason of the suit, with his person or property.” Butler v. Morgan, 590 S.W.2d 543, 545 (Tex. Civ. App.—Houston [1st Dist.] 1979, writ ref’d n.r.e.) (citing Pye v. Cardwell, 222 S.W. 153 (Tex. 1920)). The interference must be physical to qualify as a special injury. See Tex. Beef, 921 S.W.2d at 209. For claimed interference with property, such interference may take the form of “attachment, an appointment of receiver, a writ of replevin or an injunction[.]” Airgas-Sw., Inc. v. IWS Gas & Supply of Tex., Ltd., 390 S.W.3d 472, 479. (Tex. App.—Houston [1st Dist.] 2012, pet. denied) (citing Sharif-Munir- Davidson Dev. Corp. v. Bell, 788 S.W.2d 427, 430 (Tex.App.—Dallas 1990, writ denied) (recording a notice of lis pendens is not “actual seizure” of property necessary to prove special injury). For claimed interference with one’s person, it may be “an arrest or detention[.]” Id. “Ordinary interferences with persons and
property that any party suffers incident to a civil suit are not of the type that supports an action for malicious prosecution. Id. (citing Tex. Beef, 921 S.W.2d at 208-09; Butler, 590 S.W.2d at 545; Blanton v. Morgan, 681 S.W.2d 876, 878 (Tex.App.--El Paso 1984, writ ref’d n.r.e.)). Additionally, “consequential damages resulting from the underlying suit,” without the requisite physical interference constituting special damages, cannot support an action for malicious prosecution. See id. at 479-80. (depositions, subpoenas, attorney’s fees and litigation costs, damage to reputation, humiliation, mental anguish, loss of business, and other economic losses, among others, are insufficient to prove the threshold special injury). It is only after “the special injury hurdle has been cleared” that a plaintiff has an opportunity to recover the full range of damages available in a malicious prosecution case. Id. at 480 (citing Tex. Beef, 921 S.W.2d at 209).
In Airgas-Southwest, Inc. v. IWS Gas and Supply of Texas, Ltd., Airgas filed a temporary restraining order against IWS to prevent it from contacting or hiring Airgas employees, or contacting customers who were not already IWS customers. Id. Relying on the language in Texas Beef regarding injunctions, IWS posited that the temporary restraining order filed against it satisfied the special injury requirement. Id. But the First District Court of Appeals rebuked IWS’s broad interpretation of the Texas Supreme Court’s discussion in Texas Beef and noted that the restraining order in the instant case restrained IWS’s employees’ persons
by preventing certain activities, but did not directly affect their property. Id. at 481. The Airgas court articulated the common law history of malicious prosecution of civil suits and noted Texas courts’ long-standing position that “where there is no arrest of the person or seizure of the property, or other like injury,” there has been no special injury and there can, therefore, be no malicious prosecution claim. Id. at 481-82 (citing Salado Coll v. Davis, 47 Tex. 131, 136 (1877)). And, as the Airgas court pointed out, “We have not discovered any Texas authority to support the proposition that someone has a claim for malicious prosecution because of an interference with his person that did not amount to a physical arrest or detention." Id. at 483.
Here, Appellees purportedly presented evidence of, and argument to, the jury that their “special injury” in support of their malicious prosecution claim was being kept away from Lucca and Ella,197 and Leith being enjoined from residing at his home.198 But the evidence unequivocally proves that Appellees’ preclusion from access to Lucca and Ella and Leith’s removal from the home occurred as a result of the TRO and/or the Protective Orders, not because of the CPS Investigation or the Daycare Investigation.199 In fact, no evidence was presented to the jury that CPS or the DFPS required that Leith or Laboe should be prevented
197 7 RR 57, 101.
198 7 RR 99.
199 7 RR 57, 99, 101.
from having access to Lucca and Ella, and there is certainly no evidence that CPS or the DFPS took any action to do so. The CPS records repeatedly refer to Appellees’ access to Lucca and Ella as nonexistent as a result of the protective orders in place. The same is true for Leith’s preclusion from living at the Blacker residence. Such removal occurred, by Leith’s own testimony, following issuance of the December 6, 2019 protective order.200 Leith testified that he has never been detained or as a result of the allegations in this case.201 The jury was not presented with legally sufficient evidence, or any evidence at all, that there had been a physical There is, therefore, no evidence of special injury to Leith or Laboe which occurred as a result of the CPS Investigation.
For these reasons, the evidence was legally insufficient to support the jury’s answers to questions 1, 2, 3, and 4, finding liability and damages on Appellees’ claims for malicious prosecution, and the trial court’s judgment reflecting the jury’s erroneous verdict on these questions must be reversed and rendered in favor of Appellant.
IV. The evidence was legally insufficient to support the jury’s finding of liability against Vanessa for abuse of process and the trial court erred as a matter of law entering judgment against Vanessa based on that erroneous verdict.
200 7 RR 99.
201 7 RR 123.
Appellees’ claims for abuse of process were based upon Vanessa’s affidavits in support of the Temporary Restraining Order and two Applications for Protective Order. To prove a claim for abuse of process, a plaintiff must plead and prove (1) that he was served with valid process, (2) the defendant made an illegal, improper, or perverted use of the process after it was issued, (3) the defendant had an ulterior motive or purpose in using the process, and (4) the plaintiff suffered injury as a result of the improper use. See Warner Bros. Entm’t, Inc. v. Jones, 538 S.W.3d 781, 815 (Tex. App.—Austin 2017); Blanton v. Morgan, 681 S.W.2d 876, 878 (Tex. App.—El Paso 1984, writ ref’d n.r.e.).
In addition to Vanessa proving her affirmative defenses of immunity as a matter of law as addressed in Section II of this Brief, there is also no evidence of one or more essential elements of Appellees’ abuse of process claims against Vanessa and the evidence was, therefore, legally insufficient to support the jury’s answers to questions 7, 8, 9, and 10. Specifically, there is no evidence of an illegal, improper, or perverted use of the process made on Appellees; and there is no evidence of an ulterior motive or purpose in using the process.202
202 Appellant also asserts that Appellees failed to demonstrate injury as a result of the improper use because it cannot prove improper use in the first instance. To the extent necessary to preserve that element for appellate review and to avoid any claim of briefing waiver, Appellant likewise asserts the evidence was legally insufficient to support the jury’s answers to questions 7 and 9 regarding liability for abuse of process because Appellees failed to produce any evidence at trial of injury caused by improper use of process. See Martinez, 267 S.W.3d at 528.
A. There is no evidence that Vanessa made an illegal, improper, or perverted use of the process after it was issued.
The second essential element of an abuse of process cause of action is the illegal, improper, or perverted use of process otherwise validly issued. Martinez v. English, 267 S.W.3d 521, 528 (Tex. App.—Austin 2008, pet. denied). In order for the process to be used improperly, it must be used in a way that is not authorized by the process. See Graves v. Evangelista-Ysasaga, No. 14-22-00137-CV, 2023 WL 370589, at * 5 (Tex. App.—Houston [14th Dist.] 2023, pet. denied) (“[T]o sustain an abuse-of-process claim, ‘it is critical that the process be improperly used after it has been issued.’”).
Here, Appellees claim they were “served with valid process and as parties to the Divorce Case and protective order case(s).”203 There is no dispute that Leith was validly served with process in the Divorce Proceedings. However, there is no evidence that Laboe was served with process in the Divorce Proceedings when they were initiated in November of 2019. The evidence conclusively demonstrates he was first served with process of the Protective Order which ordered him not to have contact with Lucca or Ella, the very purpose he claims is improper in the service.204 Laboe makes no further complaint about the Protective Order or its implications other than what it prevented him from doing as stated on its face,
203 CR 25.
204 CR 25-26; 8 RR 11.
which was preventing him from seeing his niece and nephew.205 In other words, Laboe takes issue only with the Protective Order’s authorized use which occurred at the time of its issuance. See Graves, 2023 WL 370589, at * 5. There is simply no evidence of improper use as it pertains to Laboe’s claims.
Leith takes issue with Vanessa obtaining the TRO and the Protective Orders after initiating the Divorce Proceedings.206 According to Appellees’ Original Petition, Vanessa made improper use of process “by executing the affidavit of November 14, 2018 and the ex parte affidavits of December 6, 2019[,] to obtain the restraining order and protective orders, respectively” for purposes of “obtain[ing] an advantage in the Divorce Case to obtain custody of the children[.]”207 But, “[a] claim based on the filing and maintaining of a lawsuit and the obtaining of a temporary restraining order cannot constitute abuse of process, because abuse of process refers to the improper use of the process after it has been issued.” Spencer v. Overpeck, 2017 WL 993093, at * 6 (Tex. App.—San Antonio Mar. 15, 2017, pet. denied). Even when a petition is based on false allegations which lead to the entry of a temporary restraining order, there must be some evidence of how the restraining order itself, once obtained, was improperly used. Id.
205 8 RR 11.
206 CR 25-26.
207 CR 25.
Here, all of Leith’s abuse-of-process complaints involve allegations of dishonesty by Vanessa in executing the TRO Affidavit and the PO Affidavit. However, he did not present any evidence to the trial court that either the TRO or the Protective Order were used improperly after they were issued. His only complaints relate to being prevented from seeing his children, which is part of the express purpose for Vanessa having obtained the two orders.208 There is no question that the process at issue here was used for a purpose that the law intends—namely, to prevent access to children when there are allegations of abuse. See Detenbeck v. Koester, 886 S.W.2d 477, 480-81 (Tex. App.—Houston [1st Dist.] 1994, no writ).
B. There is no evidence that Vanessa had an ulterior motive or purpose in using the process.
The third element of an abuse of process claim is that the plaintiff has an ulterior motive in using the process improperly. Martinez, 267 S.W.3d at 521. For many of the same reasons articulated regarding improper use, Appellees failed to supply the trial court with any evidence of an ulterior motive by Vanessa in using the process. See Montemayor v. Ortiz, 208 S.W.3d 627, 650 (Tex. App.—Corpus
Christi 2006, pet. denied) (an ulterior motive combined with the process being 208 Appellees’ Original Petition claims the Temporary Restraining Order and Protective Orders were improperly used for Vanessa to gain an advantage in the Divorce Proceedings by having possession of the children. See CR 25-26. However, even if there was some evidence of this, which there is not, demonstrating improper use cannot be accomplished by demonstrating the defendant gained an advantage in the same proceeding where the process was issued. See Davis v. West, 433 S.W.3d 101, 111 (Tex. App.—Houston [1st Dist.] 2014, pet. denied).
used for its intended purpose is not an abuse of process). Vanessa testified unequivocally that her reasons for wanting to get the Temporary Restraining Order and the Protective Orders was to prevent her children from being exposed to Nahomy and Damian, and later Leith and Laboe.209 Those reasons are precisely the basis for and the use described in the respective orders. Appellees offered no evidence of ulterior motive—that is, some purpose that the orders would be used other than the express purpose stated in the orders. See id.
Because there was no evidence, and certainly legally insufficient evidence, supplied at trial which was required to prove one or more essential elements of Appellees’ claims for abuse of process, there was no evidence to support the jury’s answers to questions 7, 8, 9 and 10, and the trial court erred in entering judgment based on the jury’s erroneous verdict.
V. There is legally insufficient evidence in the trial record to support the jury’s answers regarding damages.
Finally, Appellees failed to satisfy their burden of proof regarding the existence or amount of damages awarded in questions 2, 4, 6, and 8 and the evidence at trial was legally insufficient to support the jury’s answers to these questions.
“An award for mental anguish must be supported by direct evidence of either (1) a substantial disruption in the plaintiff’s daily routine, or (2) evidence of a high degree of mental pain and distress that is more
209 9 RR 30.
than mere worry, anxiety, vexation, embarrassment, or anger. There must be evidence of the existence of compensable mental-anguish damages and evidence to justify the amount awarded.” Bennett v.
Grant, 525 S.W.3d 642, 648 (Tex. 2017).
In Service Corp. Intern. v. Guerra, 348 S.W.3d 221, 226 (Tex. 2011), three daughters and their mother sued a company for mishandling of a corpse regarding their father’s remains. In testifying about damages, one daughter testified, “‘[t]his has been the hardest thing that I have had to go through with my family and myself. I have had lots of nights that I don’t sleep just thinking’ and that it has been ‘very difficult.’” Id. at 232. She testified that she nevertheless continued working, traveling, volunteering and conducting other life activities. Id. Another daughter testified “[w]e're not at peace. We're always wondering. You know, we were always wondering where our father was. It was hard to hear how this company stole our father from his grave and moved him. That was hard. And I pray that none of you have to go through this.” Id. The third daughter testified, “it's not part of my life. I didn't have to accept that and I do not accept it and I won't accept it.” Id. There, the Texas Supreme Court held that the evidence at trial regarding mental anguish damages for the three daughters was legally insufficient even though the claim was “of the type for which mental anguish damages are recoverable.” Id. at 231 (“Even when an occurrence is of the type for which mental anguish damages are recoverable, evidence of the nature, duration, and severity of the mental anguish is required.”).
Moreover, while legally sufficient evidence of the nature, duration and severity of the alleged mental anguish is required, “there must also be some evidence to justify the amount awarded.” Gregory v. Chohan, 670 S.W.3d 546, 563-64 (Tex. 2023) (quoting Saenz v. Fidelity & Guar. Ins. Underwriters, 925 S.W.2d 607, 614 (Tex. 1996)). Even sufficient evidence of the existence of mental anguish suffered by a plaintiff “is no evidence, standing on its own, of the amount of damages incurred on account of that suffering.” Id. at 563. “[T]he jury’s discretion [to assign a dollar value to noneconomic damages] is by no means unlimited[.]” Id. at 557. “Juries cannot simply pick a number and put it in the blank.” Bentley v. Bunton, 94 S.W.3d 561, 606 (Tex. 2002).
There is insufficient evidence in the trial record of the nature, duration, or severity of Appellees’ purported anguish to establish the existence of a substantial disruption in their daily routine or other evidence of a high degree of mental pain and distress that is more than mere worry, anxiety, vexation, embarrassment, or anger. With respect to alleged damages for mental anguish, the totality of evidence of Leith’s alleged damages are as follows:
Leith testified that because he could not see his children, “there’s been many times especially at the beginning where I couldn’t sleep. I couldn’t eat. Affected my work, affected my daily life.”210
210 7 RR 107.
He testified that he has seen a counselor.211 He testified that he is worried he will not have the same relationship with his children as he had previously before the allegations regarding the abuse were made.212
He testified that with regard to his daughter, he has missed out on potty training, teaching her how to ride a bike, teaching her to swim, and building a bond with her.213 He could not testify about anything he has missed out on with his son other than, “[h]is school, his friends.”214 Laboe’s only evidence regarding alleged mental anguish damages were:
The investigation from the daycare licensing agency made him “very embarrassed, very upset, very frustrated, and very very sad.”215 The allegations against him were “very embarrassing. It was horrible.
It’s a horrible feeling to have to talk with [sic] these accusations to people that you work with on a professional level.” . . . “this is the worst of the worst that can happen in daycare.”216
211 7 RR 107.
212 7 RR 102.
213 7 RR 102-03.
214 7 RR 103.
215 7 RR 160.
216 7 RR 162.
The allegations made against his children regarding the abuse made him feel “horrible, embarrassed, and just sad.”217 Telling his parents about the allegations made against him made him feel “[h]umiliated, mad, extremely sad. It was one of the most horrible experiences I had to tell my parents.”218 Laboe stated he experienced problems with “loss of sleep, weight loss, extreme duress, constant fear[,]” but offered no elaboration.219 He testified he got physically ill, but failed to identify any details of the alleged illness.220
When asked about his professional reputation after the allegations were made, Laboe testified, “It was harmed.”
His biggest fear about what happened to him in the past is “that these allegation [sic] do not stop, that the defendant does not stop harassing, making these false allegations, continuing hurting the business, continually harming the relationship I had with Nahomy and Damian.
That’s my greatest fear.”221
217 7 RR 164.
218 8 RR 26.
219 8 RR 38.
220 8 RR 38-39.
221 8 RR 40.
Appellees’ testimony fails to rise to the level of purported anguish to establish the existence of a substantial disruption in their daily routine because of that mental anguish, or any other evidence of a high degree of mental pain and distress that is more than mere worry, anxiety, vexation, embarrassment, or anger. Additionally, there was no evidence of the nature, duration, and severity of the feelings Appellees described which purport to constitute mental anguish. Rather, the feelings described by Appellees are precisely of the type the Texas Supreme Court deemed legally insufficient to support a finding of mental anguish damages. See Guerra, 348 S.W.3d at 232.
Additionally, there was no evidence to support the amount of damages awarded by the jury. See Bentley, 94 S.W.3d at 606-07. When asked whether he was asking for a certain amount of money from the lawsuit, Leith responded, “I think it was filed for five million. But it just – that’s not going to bring my kids back. It’s not going to bring my four years back. And probably tell you, whatever the jury – [.]”222 Laboe, on the other hand, never offered any testimony or other evidence regarding an amount of damages he sought in the case.
Appellees’ counsel made comments regarding assigning a value of mental anguish damages in closing arguments.223 Specifically, he stated,
222 7 RR 105.
223 11 RR 70.
Ladies and gentlemen, that brings us to damages. And if I were to say to you, you know, what sum of money could I offer you to be separated from your children, you would probably say, well, there would be no sum of money that you could offer me to do that. And we would agree that a child to a parent is priceless. The fact of the matter is, what happened to Leith Labrado and his brother and their business was separation from family members, family members from each other and then from their niece and nephew. And it's persisted for four years. So what is it worth? Is it worth $100,000? Is it worth $250,000?
500? One million? What sum of money would you take to be separated from your children like that? What is it worth? And I would ask you, ladies and gentlemen, to honor that and consider it seriously.
Because this is the kind of case that is important.224
The argument made by Appellees’ counsel, and the one statement made by Leith regarding an amount of mental anguish damages, asks the jury to do exactly what the Texas Supreme Court proscribes over decades of jurisprudence. It suggests that the jury had unlimited discretion to assign a value to the mental anguish allegedly suffered by the Appellees; to pick a number and write it in the blank. See Gregory, 670 S.W.3d at 557; Bentley, 94 S.W.3d at 606. There is, simply, no evidence of either the existence or amount of mental anguish damages allegedly suffered by the Appellees. Thus, the evidence is legally insufficient to support the jury’s answers to Questions 2, 4, 8, and 10.
224 11 RR 70.
PRAYER
The jury’s answers to questions 1, 2, 3, 4, 7, 8, 9, and 10 regarding Appellees claims for malicious prosecution of a civil claim and abuse of process were not supported by legally sufficient evidence at trial. In fact, the evidence adduced at trial conclusively demonstrates that Appellant cannot be liable to Appellees for the causes of action complained of based on affirmative defenses of judicial proceedings privilege and immunity under Section 261.106 of the Texas Family Code. Additionally, the evidence at trial was legally insufficient to prove one or more essential elements of Appellees’ claims against her. Appellant is entitled to take-nothing judgment on all of Appellees’ claims as a matter of law based on the evidence presented to the trial court and the jury.
For all the foregoing reasons, Appellant Vanessa Velez Labrado asks this Court to strike the jury’s findings on questions 1, 2, 3, 4, 7, 8, 9, and 10 regarding Appellees claims for malicious prosecution of a civil claim and abuse of process; to reverse the judgment of the trial court and render take-nothing judgment in her favor on all of Appellees’ claims against her, and for any other relief to which she may show herself entitled at law or in equity.
<Signature page follows.>
Respectfully submitted,
KEMP SMITH LLP
221 N. Kansas, Suite 1700 El Paso, Texas 79901
Telephone: (915) 533-4424 Facsimile: (915) 546-5360
By: /s/ Rachel C. Moreno
RACHEL C. MORENO
Rachel.Moreno@kempsmith.com State Bar No. 24078321
Attorneys for Appellant
CERTIFICATE OF COMPLIANCE
I certify that this document was produced on a computer using Microsoft Word 2016 with a 14-point font conventional typeface and 12-point font for any footnotes. Excluding the sections of the document listed in Rule 9.4(i)(1) of the Texas Rules of Appellate Procedure, this document contains 12,112 words, as determined by the computer software’s word-count function.
/s/ Rachel C. Moreno
Rachel C. Moreno
CERTIFICATE OF SERVICE
I certify that a true and correct copy of the foregoing document has been served by e-service upon the following, in accordance with Rule 9.5 of the Texas Rules of Appellate Procedure, on this 29th day of October, 2024.
Troy C. Brown Laura Enriquez 1074 Country Club Rd. Laura Enriquez and Associates, PLLC Suite B-4 221 N. Kansas, Suite 710 El Paso, Texas 79932 El Paso, TX 79901 troy@tcblegal.com enriquez@leeplaw.com Attorney for Appellee Leith Labrado Attorney for Appellee Laboe Labrado
/s/ Rachel C. Moreno
Rachel C. Moreno
APPENDIX
A-1
FILED
NORMA PAVEL A BARCELEAU
DISTRIC T CLERK
IN THE 243rd JUDICIAL DISTRICT COURT EL PASO COUNTY, TEXAS 2024 FEB -1 PM 6: 02 LEITH LABRADO, LABOE LABRADO & EL PASO COUNTY. TEXAS THREE R'S SCHOOL, LLC.
PU Y
Plaintiffs, , § rn
ZO :9 1.13 1.;.- 833 tiZOZ § 1-...
..C
r.m.
'
V. § Cause No. 2021DC 5§ cri)
§ , a , a
VANESSA VELEZ LABRADO, § a
a
-t
CHARGE OF THE COURT
LADIES AND GENTLEMEN OF THE JURY:
After the closing arguments, you will go to the jury room to decide the case, answer the questions that are attached, and reach a verdict. You may discuss the case with other jurors only when you are all together in the jury room.
Remember my previous instructions: Do not discuss the case with anyone else, either in person or by other means. Do not do any independent investigations about the case or conduct any research. Do not look up any words in dictionaries or on the Internet. Do not post information about the case on the Internet. Do not share any special knowledge or experiences with the other jurors. Do not use your phone or any other electronic device during your deliberations for any reason.
Here are the instructions for answering the questions:
1. Do not let bias, prejudice or sympathy play any part in your decision.
2. Base your answers only on the evidence admitted in court and on the law that is in these instructions and questions. Do not consider or discuss any evidence that was not presented in the courtroom.
3. You are to make up your own minds about the facts. You are the sole judges of the credibility of the witnesses and the weight to give their testimony. But on matters of law, you must follow all my instructions.
4. If my instructions use a word in a way that is different from its ordinary meaning, use the meaning I give you, which will be a proper legal definition.
5. All the questions and answers are important. No one should say that any question
or answer is not important.
6. Answer "yes" or "no" to all questions unless you are told otherwise. A "yes"
answer must be based on a preponderance of the evidence unless you are told otherwise.
Whenever a question requires an answer other than "yes" or "no," your answer must be based on a preponderance of the evidence unless you are told otherwise.
The term "preponderance of the evidence" means the greater weight of credible evidence presented in this case. If you do not find that a preponderance of the evidence supports a "yes" answer, then answer "no." A preponderance of the evidence is not measured by the number of witnesses or by the number of documents admitted in evidence. For a fact to be proved by a preponderance of the evidence, you must find that the fact is more likely true than not true.
A fact may be established by direct evidence or by circumstantial evidence or both. A fact is established by direct evidence when proved by documentary evidence or by witnesses who saw the act done or heard the words spoken. A fact is established by circumstantial evidence when it may be fairly and reasonably inferred from other facts proved.
7. Do not decide who you think should win before you answer the questions and then just answer the questions to match your decision. Answer each question carefully without considering who will win. Do not discuss or consider the effect your answers will have.
8. Do not answer questions by drawing straws or by any method of chance.
9. Some questions might ask you for a dollar amount. Do not agree in advance to decide on a dollar amount by adding up each juror's amount and then figuring the average.
10. Do not trade your answers. For example, do not say, "I will answer this question your way if you answer another question my way."
11. The answers to the questions must be based on the decision of at least ten of the twelve jurors. The same ten jurors must agree on every answer. Do not agree to be bound by a vote of anything less than ten jurors, even if it would be a majority.
As I have said before, if you do not follow these instructions, you will be guilty of juror misconduct, and I might have to order a new trial and start this process over gain. This would waste your time and the parties' money and would require the taxpayers of this county to pay for another trial. If a juror breaks any of these rules, tell that person to stop and report it to me immediately.
I.
The elements of a cause of action for malicious [civil] prosecution of civil proceedings are the following: (1) a civil proceeding was instituted or continued against the plaintiff; (2) the civil proceeding was instituted or continued by or at the insistence of the defendant; (3) the defendant acted with malice; (4) the defendant did not have probable cause for the proceeding or the underlying suit; (5) the proceeding was terminated in plaintiff's favor; and (6) the plaintiff suffered special injury as a result of the proceeding.
Besides an ordinary civil lawsuit, the following types of civil proceedings can support a claim for malicious prosecution: involuntary commitment and temporary guardianship proceedings; involuntary bankruptcy proceedings; and administrative proceedings.
"Malice" is defined as ill will, evil motive, or such gross indifference or reckless disregard for the rights of others as to amount to a willful or wanton act.
In malicious civil prosecution cases, there is an initial presumption that the defendant acted reasonably and in good faith and therefore had probable cause. The presumption disappears once the plaintiff produces evidence that the motives, grounds. beliefs, and evidence the defendant acted on did not amount to probable cause to commence or continue the proceedings. Once the plaintiff overcomes the presumption, the defendant must offer independent proof of probable cause.
"Probable cause" is defined as "[T]he existence of such facts and circumstances as would excite belief in a reasonable mind, acting on the facts or circumstances within his knowledge at the time the proceeding was commenced, that the commencement of the proceeding was proper."
"Termination in plaintiff's favor" requires the plaintiff to establish that the civil proceeding was terminated in the plaintiff's favor. The plaintiff must show that a final judgment was rendered in the underlying suit and that all appeals were exhausted. The voluntary termination of the underlying suit does not satisfy the favorable-termination element; however, the withdrawal or abandonment of a proceeding may be evidence of a favorable-termination.
A plaintiff suffers "special injury" when there has been physical interference with the plaintiff's person or property, such as arrest, attachment, injunction, or sequestration.
The defendant can assert the defenses of good faith and absolute immunity to a claim for malicious civil prosecution. Because there is a presumption that the defendant was reasonable in bringing suit [administrative proceedings], and brought it in good faith, the defendant does not need to raise the defense of good faith and offer other evidence to support it unless the plaintiff overcomes the presumption. Here, the defendant has claimed that the plaintiffs have not overcome the presumption that defendant acted in bad faith. When a defendant testifies at trial, no civil liability for malicious prosecution may arise from that testimony. Here, the defendant has claimed that she is immune from civil liability based on her testimony in the underlying divorce proceedings, resulting in a restraining order and subsequent protective order.
QUESTION NO 1.
Did Vanessa Velez Labrado engage in malicious civil prosecution against Leith Labrado when she initiated or continued administrative proceedings with Texas Child Protective Services and the Texas Health and Human Services Daycare Licensing Board?
Answer "Yes" or "No."
Answer:
If you answered "Yes" to Question 1, then answer the following question. Otherwise, do not answer the following question.
QUESTION NO 2.
What sum of money, if any, if paid now in cash, would fairly and reasonably compensate Leith Labrado for damages, if any, proximately caused by such malicious prosecution?
"Proximate cause" means a cause that was a substantial factor in bringing about an event, and without which cause such event would not have occurred. In order to be a proximate cause, the act or omission complained of must be such that a person using the degree of care required of him would have foreseen that the event, or some similar event, might reasonably result therefrom. There may be more than one proximate cause of an event.
Consider the following elements of damages, if any, and none other. You shall not award any sum of money on any element if you have otherwise, under some element, awarded a sum of money for the same loss. That is, do not compensate twice for the same loss, if any.
In answering questions about damages, answer each question separately. Do not increase or reduce the amount in one answer because of the instructions in or your answers to any other questions about damages. Do not speculate about what any party's ultimate recovery may or may not be. Any recovery will be determined by the court when it applies the law to your answers at the time of judgment.
Do not add any amount for interest on damages, if any.
Answer separately in dollars and cents for damages, if any.
1. Reputation damages.
Answer:
2. Mental anguish damages.
Answer: 4X56 .CO
QUESTION NO 3.
1sttoo e
Did Vanessa Velez Labrado engage in malicious civil prosecution against .1.4414-Labrado gro
when she initiated or continued administrative proceedings with Texas Child Protective Services and the Texas Health and Human Services Daycare Licensing Board?
Answer "Yes" or "No."
Answer:
If you answered "Yes" to Question 3, then answer the following question. Otherwise, do not answer the following question.
QUESTION NO 4.
What sum of money, if any, if paid now in cash, would fairly and reasonably compensate Laboe Labrado for damages, if any, proximately caused by such malicious prosecution?
"Proximate cause" means a cause that was a substantial factor in bringing about an event, and without which cause such event would not have occurred. In order to be a proximate cause, the act or omission complained of must be such that a person using the degree of care required of him would have foreseen that the event, or some similar event, might reasonably result therefrom. There may be more than one proximate cause of an event.
Consider the following elements of damages, if any, and none other. You shall not award any sum of money on any element if you have otherwise, under some element, awarded a sum of money for the same loss. That is, do not compensate twice for the same loss, if any.
In answering questions about damages, answer each question separately. Do not increase or reduce the amount in one answer because of the instructions in or your answers to any other questions about damages. Do not speculate about what any party's ultimate recovery may or may not be. Any recovery will be determined by the court when it applies the law to your answers at the time of judgment.
Do not add any amount for interest on damages, if any.
Answer separately in dollars and cents for damages, if any.
1. Reputation damages.
Answer:
2. Mental anguish damages.
Answer: $ as- 00O
QUESTION NO 5.
Did Vanessa Velez Labrado engage in malicious civil prosecution against Three R's School, LLC., when she initiated or continued administrative proceedings with the Texas Health and Human Services Daycare Licensing Board?
Answer "Yes" or "No."
Answer: Kip If you answered "Yes" to Question 5, then answer the following question. Otherwise, do not answer the following question.
QUESTION NO 6.
What sum of money, if any, if paid now in cash, would fairly and reasonably compensate Three R's School, LLC for damages, if any, proximately caused by such malicious prosecution?
"Proximate cause" means a cause that was a substantial factor in bringing about an event, and without which cause such event would not have occurred. In order to be a proximate cause, the act or omission complained of must be such that a person using the degree of care required of him would have foreseen that the event, or some similar event, might reasonably result therefrom. There may be more than one proximate cause of an event.
Consider the following elements of damages, if any, and none other. You shall not award any sum of money on any element if you have otherwise, under some element, awarded a sum of money for the same loss. That is, do not compensate twice for the same loss, if any.
In answering questions about damages, answer each question separately. Do not increase or reduce the amount in one answer because of the instructions in or your answers to any other questions about damages. Do not speculate about what any party's ultimate recovery may or may not be. Any recovery will be determined by the court when it applies the law to your answers at the time of judgment.
Do not add any amount for interest on damages, if any.
Answer separately in dollars and cents for damages, if any.
1. Defense damages.
Answer:
II.
"Abuse of Process" is defined as the improper use of process after its issuance—that is, the use of validly issued process for a purpose other than that for which it was designed.
The elements of a cause of action for abuse of process are the following: (1) the plaintiff was served with valid process; (2) the defendant made an illegal, improper, or perverted use of the process after it was issued; (3) the defendant had an ulterior motive or purpose in using the process; and (4) the plaintiff suffered injury as a result of the improper use.
"Process" is defined as any writ, summons, mandate or other judicial procedure used to inform a defendant of the beginning of judicial proceedings against him and to compel his appearance in court. The process originally served must have been valid, regular, and properly issued.
The mere issuance of process is not actionable as an abuse of process; there must be some use of the process that is improper. Process is used improperly when it is used (1) to accomplish some end other than its lawfully intended purpose, and (2) to compel a party to do some collateral thing that it would not otherwise be compelled to do. The improper use must be a use not authorized by the process, and it usually takes the form of coercion to obtain advantage in a matter not involved in the proceeding itself.
In most cases, ulterior motive is inferred from the improper purpose; for example, when the process is used to seize property that is not subject to the writ.
To prove injury, the plaintiff must show wrongful seizure of property or actual interference with the plaintiffs person. The relationship between the injury and the improper use is usually obvious because the injury is the immediate and direct consequence of the improper use.
A defendant can assert the defense of immunity to a claim for abuse of process. The law recognizes a person acting in good faith who (1) reports child abuse or neglect, (2) assists in the investigation of a report of alleged child abuse or neglect, or (3) testifies or participates in a judicial proceeding arising from a report or investigation of child abuse, is immune from civil or criminal liability that might otherwise be incurred or imposed for reporting child abuse.
QUESTION NO 7.
Did Vanessa Velez Labrado commit abuse of process when she obtained the restraining order or subsequent protective order against Leith Labrado?
Answer "Yes" or "No."
Answer: yes If you answered "Yes" to Question 7, then answer the following question. Otherwise, do not answer the following question.
QUESTION NO 8.
What sum of money, if any, if paid now in cash, would fairly and reasonably compensate Leith Labrado for damages, if any, proximately caused by such abuse of process?
Consider the following elements of damages, if any, and none other. You shall not award any sum of money on any element if you have otherwise, under some element, awarded a sum of money for the same loss. That is, do not compensate twice for the same loss, if any.
In answering questions about damages, answer each question separately. Do not increase or reduce the amount in one answer because of the instructions in or your answers to any other questions about damages. Do not speculate about what any party's ultimate recovery may or may not be. Any recovery will be determined by the court when it applies the law to your answers at the time of judgment.
Do not add any amount for interest on damages, if any.
Answer separately in dollars and cents for damages, if any.
1. Actual damages.
Answer: $ 00 1 COO
QUESTION NO 9.
Did Vanessa Velez Labrado commit abuse of process when she obtained the protective order against Laboe Labrado?
Answer "Yes" or "No."
Answer:
\i°5
If you answered "Yes" to Question 9, then answer the following question. Otherwise, do not answer the following question.
QUESTION NO 10.
What sum of money, if any, if paid now in cash, would fairly and reasonably compensate Laboe Labrado for damages, if any, proximately caused by such abuse of process?
Consider the following elements of damages, if any, and none other. You shall not award any sum of money on any element if you have otherwise, under some element, awarded a sum of money for the same loss. That is, do not compensate twice for the same loss, if any.
In answering questions about damages, answer each question separately. Do not increase or reduce the amount in one answer because of the instructions in or your answers to any other questions about damages. Do not speculate about what any party's ultimate recovery may or may not be. Any recovery will be determined by the court when it applies the law to your answers at the time of judgment.
Do not add any amount for interest on damages, if any.
Answer separately in dollars and cents for damages, if any.
1. Actual damages.
Answer: S @S--1 00C)
The elements of an action for tortious interference with an existing contract are the following: (1) the plaintiff had a valid contract; (2) the defendant willfully and intentionally interfered with the contract; (3) the interference proximately caused the plaintiffs injury; and the plaintiff incurred actual damage or loss.
Interference with a contract is tortious only if it is intentional. The intent required is the intent to interfere. Intentional interference requires only that the defendant wants to cause the consequences of its act or that the consequences are substantially certain to result from the act.
As part of the proximate-cause element, the plaintiff must prove the defendant took an active part in persuading the party to breach its contract. The plaintiff also must establish the interference caused actual damage or loss.
A defendant can assert the defense of immunity to a claim for tortious interference with existing contract. The law recognizes a person acting in good faith who (1) reports child abuse or neglect, (2) assists in the investigation of a report of alleged child abuse or neglect, or (3) testifies or participates in a judicial proceeding arising from a report or investigation of child abuse, is immune from civil or criminal liability that might otherwise be incurred or imposed for reporting child abuse.
QUESTION NO 11.
Did Vanessa Velez Labrado intentionally interfere with Three R's School, LLC's daycare contractt?
Answer "Yes" or "No."
Answer:
If you answered "Yes" to Question 11, then answer the following question. Otherwise, do not answer the following question.
QUESTION NO 12.
What sum of money, if any, if paid now in cash, would fairly and reasonably compensate Three R's School, LLC for damages, if any, proximately caused by such tortious interference with existing contract'?
Consider the following elements of damages, if any, and none other. You shall not award any sum of money on any element if you have otherwise, under some element, awarded a sum of money for the same loss. That is, do not compensate twice for the same loss, if any.
In answering questions about damages, answer each question separately. Do not increase or reduce the amount in one answer because of the instructions in or your answers to any other questions about damages. Do not speculate about what any party's ultimate recovery may or may not be. Any recovery will be determined by the court when it applies the law to your answers at the time of judgment.
Do not add any amount for interest on damages, if any.
Answer separately in dollars and cents for damages, if any.
1. Damages for loss of contractual profit.
Answer:
Answer the following question regarpng Vanessa Velez Labrado only if you unanimously answered "Yes" to Questions 1,e, 7, 9, or 11 regarding Vanessa Velez Labrado. Otherwise, do not answer the following question regarding Vanessa Velez Labrado.
Exemplary damages may be awarded only if the plaintiff proves by clear and convincing evidence that the harm resulted from the specific circumstances pled.
"Exemplary damages" means an amount that you may in your discretion award as a penalty or by way of punishment.
"Clear and convincing" means the measure of the degree of proof that produces a firm belief or conviction of the truth of the allegationsSought to be established.
A
3
In order for you to find exemplary damages, your answer to Questions 1, /, 5, 7, 9, or 11 regarding the amount of such damages must be unanimous.
QUESTION NO 13.
What sum of money, if any, if paid now in cash, should be assessed against Vanessa Velez Labrado and awarded to Leith Labrado as exemplary damages, if any, for the conduct found in response to Question 1 or Question 7?
Factors to consider in awarding exemplary damages, if any, are -
1. The nature of the wrong.
2. The character of the conduct involved.
3. The degree of culpability of Vanessa Velez Labrado.
4. The situation and sensibilities of the parties concerned.
5. The extent to which such conduct offends a public sense of justice and propriety.
Answer in dollars and cents, if any.
Answer:
QUESTION NO 14.
What sum of money, if any, if paid now in cash, should be assessed against Vanessa Velez Labrado and awarded to Laboe Labrado as exemplary damages, if any, for the conduct found in response to Question /or Question 9?
.3
Factors to consider in awarding exemplary damages, if any, are -
1. The nature of the wrong.
2. The character of the conduct involved.
3. The degree of culpability of Vanessa Velez Labrado.
4. The situation and sensibilities of the parties concerned.
5. The extent to which such conduct offends a public sense of justice and propriety.
Answer in dollars and cents, if any.
Answer:
QUESTION NO 15.
What sum of money, if any, if paid now in cash, should be assessed against Vanessa Velez Labrado and awarded to Three R's School as exemplary damages, if any, for the conduct found in response to Question 5 or Question 11?
Factors to consider in awarding exemplary damages, if any, are -
1. The nature of the wrong.
2. The character of the conduct involved.
3. The degree of culpability of Vanessa Velez Labrado.
4. The situation and sensibilities of the parties concerned.
5. The extent to which such conduct offends a public sense of justice and propriety.
Answer in dollars and cents, if any.
Answer:
i
Presiding Juror:
When you go into the jury room to answer the questions, the first thing you will need to do is choose a presiding juror.
The presiding juror has these duties:
a. have the complete charge read aloud if it will be helpful to your deliberations;
b. preside over your deliberations, meaning manage the discussions, and see that you follow these instructions;
c. give written questions or comments to the bailiff who will give them to the judge;
d. write down the answers you agree on;
e. get the signatures for the verdict certificate; and f. notify the bailiff that you have reached a verdict.
Instructions for Signing the Verdict Certificate:
1. Unless otherwise instructed you may answer the questions on a vote of ten jurors. The same ten jurors must agree on every answer in the charge. This means you may not have one group of ten jurors agree on one answer and a different group of ten jurors agree on another answer.
2. If ten jurors agree on every answer, those ten jurors sign the verdict. If eleven jurors agree on every answer, those eleven jurors sign the verdict. If all twelve of you agree on every answer, you are unanimous and only the presiding juror signs the verdict.
3. All jurors should deliberate on every question. You may end up with all twelve of you agreeing on some answers, while only ten or eleven of you agree on other answers. But when you sign the verdict, only those ten who agree on every answer will sign the verdict.
SIGNED this 1.4 day of February, 2024.
Judge Selena N. Solis
VERDICT CERTIFICATE
Check one:
Our verdict is unanimous. All twelve of us have agreed to each and every answer. The presiding juror has signed the certificate for all twelve of us.
Signature of Presiding Juror Printed Name of Presiding Juror
Our verdict is not unanimous. Eleven of us have agreed to each and every answer and have signed the certificate below.
Our verdict is not unanimous. Ten of us have agreed to each and every answer and have signed the certificate below.
SIGNCTURE NAM PRINTED 1. LC
2. etar',53e S. (11\001r;DiAe7.- 3. 4. ni/vissV•i D 17) --k-;
5. VeduE i4A 1-
107
6. (70-rco, ,veff
7.
8. e 9.
%O A. 67a Axg...
10-
11.
El Paso County - 243rd District Court Filed 4/11/2024 1:38 PM A-2 Norma Favela Barceleau
District Clerk
El Paso County
2021DCV3955
IN THE DISTRICT COURT OF EL PASO COUNTY, TEXAS 243rd JUDICIAL DISTRICT COURT
LEITH LABRADO, LABOE LABRADO and THREE R'S SCHOOL, LLC,
Plaintiffs
Cause 2021DCV3955
V.
VANESSA VELEZ LABRADO,
Defendant
JUDGMENT
On January 26, 2024, this above-entitled and numbered cause was called to trial. Plaintiffs, LEITH LABRADO, LABOE LABRADO, and THREE R'S SCHOOL, LLC, appeared with their attorney of record and announced ready for trial. Defendant, VANESSA VELEZ LABRADO appeared with her attorney of record and announced ready for trial.
After a jury was impaneled and sworn, it heard the evidence and arguments of counsel. In response to the jury charge, the jury made findings that the Court received, filed and entered of record. The questions submitted to the jury and jury's findings are attached as Exhibit "A" and incorporated by reference.
All matters in controversy, legal and factual, were submitted to the Court for its determination. The Court heard the evidence and arguments of counsel and announced its decision and enters the following:
The jury found damages for LEITH LABRADO in the amount of $750,000. The prejudgment interest is calculated from the date of filing suit on November 9, 2021 until the date of the signing of the judgment April 11, 2024 (884 days) at the current post-judgment rate of 8.5%.
The total amount of the prejudgment interest is $154,390.60 (yearly rate of $63,750 and daily rate of $174.65 -calculated by dividing the yearly rate of $63,750 by 365 days and then multiplying it by the 884 days). Therefore, judgment is entered for LEITH LABRADO against VANESSA VELEZ LABRADO in the amount of $904,390.60 along with an award for taxable court costs and post judgment interest at a rate of 8.5% beginning on the date of the signing of the judgment until the judgment is paid in full.
The jury found damages for LABOE LABRADO in the amount of $50,000. The prejudgment interest is calculated from the date of filing suit on November 9, 2021 until the date of the signing of the judgment April II, 2024 (884 days) at the current post-judgment rate of 8.5%. The total amount of the prejudgment interest is $10,289.76 (yearly rate of $4,250 and daily rate of $11.64 -calculated by dividing the yearly rate of $4,250 by 365 days and then multiplying it by the 884 days). Therefore, judgment is entered for LABOE LABRADO against VANESSA VELEZ LABRADO in the amount of $60,289.76 along with an award for taxable court costs and post judgment interest at a rate of 8.5% beginning on the date of the signing of the judgment until the judgment is paid in full.
Accordingly, the Court order that Plaintiff LEITH LABRADO recover the following from Defendant VANESSA VELEZ LABRADO:
a. $904,390.60;
b. taxable court costs; and d. Post-judgment interest on all of the above at the rate of 8.5% as permitted and calculated by law from the date this Judgment is entered until all amounts are paid in full.
Accordingly, the Court order that Plaintiff LABOE LABRADO recover the following from Defendant VANESSA VELEZ LABRADO:
a. $60,289.76:
b. taxable court costs; and d. Post-judgment interest on all of the above at the rate of 8.5% as permitted and calculated by law from the date this Judgment is entered until all amounts are paid in full.
All writs and processes for enforcement and collection of this Judgment and the costs of court may issue as necessary.
All relief requested which is not expressly granted is denied.
This judgment finally disposes of all claims and all parties and is appealable.
SIGNED on I , April 2024.
Honorable Selena N. Solis
A ROVED AS TO FO
Troy C. Brow Laura Enriq ez Attorney f' r Plain
Dor A. Sipes At omey for Defendant
Automated Certificate of eService This automated certificate of service was created by the efiling system. The filer served this document via email generated by the efiling system on the date and to the persons listed below. The rules governing certificates of service have not changed. Filers must still provide a certificate of service that complies with all applicable rules.
Terry Castillo on behalf of Rachel Moreno Bar No. 24078321 tschoemer@kempsmith.com Envelope ID: 93782578 Filing Code Description: Brief Not Requesting Oral Argument Filing Description: Appellant's Brief Status as of 11/1/2024 11:38 AM MST
Case Contacts Name BarNumber Email TimestampSubmitted Status Terry Castillo tschoemer@kempsmith.com 10/31/2024 9:42:27 AM SENT Rachel Moreno Rachel.Moreno@kempsmith.com 10/31/2024 9:42:27 AM SENT Troy Brown troy@tcblegal.com 10/31/2024 9:42:27 AM SENT Laura Enriquez enriquez@leeplaw.com 10/31/2024 9:42:27 AM SENT
Vanessa Velez Labrado v. Leith Labrado, Laboe Labrado and Three R's School, LLC (Vanessa Velez Labrado v. Leith Labrado, Laboe Labrado and Three R's School, LLC) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.