Bradt v. West

Decision Date22 December 1994
Docket NumberNo. 01-94-00284-CV,01-94-00284-CV
Citation892 S.W.2d 56
PartiesL.T. BRADT and L.T. Bradt, P.C., Appellants, v. W. David WEST, Judy Sebek, Earle Lilly, William J. Delmore III, Piro & Lilly, P.C., Joel Nass, Foundation for Depelchin Children's Center, Baylor College of Medicine, Ernest Kendrick, M.D., Michael D. Cox, Jean Guez, Barbara Taylor Chase Hopkins, Luisa Maria Acevedo Lohner, Ann M. Hodges, Edward J. Hennessy, Hennessy & Zito, Donald B. McFall, McFall & Sartwelle, P.C., Alan Magenheim, Hirsch, Glover, Robinson & Sheiness, P.C., William R. Pakalka, Nancy Locke, Fulbright & Jaworski, Donald M. Hudgins, Hudgins, Hudgins & Warrick, P.C., James H. Barker, Giessel, Stone, Barker & Lyman, P.C., Aetna Casualty & Surety Company, The Automobile Insurance Company of Hartford, Connecticut, Texas Lawyers Insurance Exchange, Sheryl Mulliken Fike, R. Edward Perkins, John Kapacinskas, Wade Quinn, Matt Shafer, Dean Barth, American Home Assurance Company, Lexington Insurance Company, and American Psychiatric Association, Appellees. (1st Dist.)
CourtTexas Court of Appeals

William J. Delmore, III, Donald M. Hudgins, Alfred C. Koenig, Wayne R. Luck, Houston, Dan Morales, Jorge Vega, Toni Hunter, Michelle F. Wakefield, Austin, Michael Y. McCormick, Paul E. Stallings, Larry R. Veselka, Harold A. Odom, III, Jeffrey R. Parsons, David A. Clark, Keith A. Rowley, Houston, G. Byron Sims, for appellees.

Before DUGGAN, HUTSON-DUNN and PRICE, JJ.

OPINION

PRICE, Justice (Assigned). *

"The worst of law is that one suit breeds twenty."

--George Herbert, Jacula Prudentum

An attorney and his professional corporation appeal summary judgments granted to the defendants in a multi-cause of action lawsuit. In an earlier opinion, we affirmed the trial court's judgment. The appellants moved for rehearing. We hereby overrule the appellants' motion for rehearing, but withdraw our earlier opinion and issue this one in its stead. Nothing of substance has been changed from our original opinion ; this one is issued in its place only to address some arguments made by the appellants in their motion for rehearing.

I. The Facts

In 1986, spouses Mark Metzger and Judy Metzger (now Sebek) separated. In October of that year, Mr. Metzger (hereinafter "Metzger") filed for divorce. Out of that seemingly innocuous lawsuit, which ultimately settled, sprung four new lawsuits of considerable proportions.

1. Lawsuit number one: Metzger's first federal lawsuit

On July 13, 1989, Metzger brought the first lawsuit, filing in federal court. He pursued claims against several defendants, complaining of various acts and omissions that allegedly occurred during the period in which he and Judy Sebek were going through their divorce.

Metzger alleged that the defendants were all participants in a "child abuse enterprise." According to Metzger's pleadings, the enterprise worked as follows. In order to squeeze money from Metzger in a settlement of the divorce action, Earle Lilly, Joel A. Nass, and Piro & Lilly, P.C.--all of whom represented Judy Sebek--decided to make false allegations that Metzger sexually abused one of the couple's three children. In furtherance of the scheme, Sebek claimed that the couple's middle child (of three) told her that Metzger had abused him. The accusation was then reported to mental health care professionals Jean Guez (a psychologist appointed to the case by the judge) and Barbara Taylor, 1 who confirmed the child's accusations. Guez then threatened that she would recommend to the judge that the child be hospitalized, and that Metzger's visitation rights be all but extinguished, if Metzger did not accept a less favorable settlement than he ordinarily would have accepted. Metzger capitulated to the threat. As part of the settlement, the child was put in Depelchin Children's Center, where Ernest Kendrick (from Baylor College of Medicine) headed the child's treatment team. Also on the treatment team were Luisa Maria Acevedo Lohner and Ann M. Hodges. By installing the issue of child abuse in the divorce action, everyone made money from Metzger's misfortune: Judy Sebek's lawyers leveraged a better settlement for Judy, which made money for her and for her attorneys, too, in the form of attorney's fees. All of the health care professionals who evaluated and/or treated the child for the alleged sexual abuse also profited, because Metzger paid, at least in part, for all of their services through the settlement. As indicated above, this description of the alleged "child abuse enterprise" is only from Metzger's pleadings in lawsuit number one, not from any evidence.

Allegedly as a collateral effect of the "child abuse enterprise's" success, a grand jury looked into Metzger's alleged sexual abuse of the child. Michael D. Cox, another health care professional, gave testimony favorable to Metzger before the grand jury. Nevertheless, Metzger was indicted. 2

Metzger sued Judy Sebek, Earle Lilly, Joel A. Nass, Piro & Lilly, P.C., Jean Guez, Barbara Taylor, Depelchin Children's Center, Ernest Kendrick, Luisa Maria Acevedo Lohner, Ann M. Hodges, and Baylor College of Medicine. He also named other defendants who were eventually dismissed, and, surprisingly, Michael D. Cox, who apparently incurred Metzger's wrath because he told the prosecutor, during a skilled cross-examination before the grand jury during which he was informed that the child had picked Metzger from a photospread when asked to identify the man who had abused him, that he "believe[d] kids." 3

On August 16, 1990, the federal court dismissed Metzger's case on the ground that "the Court abstains from exercising jurisdiction even if, arguably, that jurisdiction exists."

2. Lawsuit number two: Metzger's state lawsuit

A. The substance of Metzger's lawsuit

Metzger then brought suit in state court, suing the same defendants and making the same allegations. At the time of trial in state court, Metzger's petition asserted the following causes of action:

1. civil conspiracy 2. civil conspiracy to extort from and defraud him of property and liberty interests protected by the Texas and United States Constitutions;

3. malicious prosecution;
4. "deprivation of civil rights based upon malicious prosecution";
5. intentional infliction of emotional distress;
6. medical negligence (asserted only against Depelchin, Baylor, Kendrick, Lohner, Cox, and Taylor);
7. negligent infliction of emotional distress (asserted only against Depelchin, Baylor, Kendrick, Lohner, Cox, and Taylor); and
8. civil RICO (Racketeer Influenced and Corrupt Organizations Act) 4.

Aetna Casualty & Surety Company and The Automobile Insurance Company of Hartford, Connecticut, retained Hennessy & Zito to defend Judy Sebek. Texas Lawyers Insurance Exchange retained McFall & Sartwelle to defend Earle Lilly, Joel A. Nass, and Piro & Lilly, P.C. Lexington Insurance Company retained Hirsch, Robinson, Sheiness & Glover to defend Depelchin Children's Center. Lexington Insurance Company and Baylor College of Medicine, which is partially self-insured, retained Fulbright & Jaworski to defend Baylor College of Medicine, Ernest Kendrick, Luisa Maria Acevedo Lohner, Ann M. Hodges, and the particularly unfortunate Michael D. Cox. The American Psychiatric Association paid for part of Luisa Maria Acevedo Lohner's defense. American Home Assurance Company retained Hudgins, Hudgins & Warrick to defend Jean Guez, and Giessel, Stone, Barker & Lyman to defend Barbara Taylor Chase Hopkins.

At trial, L.T. "Butch" Bradt and Joe Alfred Izen, Jr., represented Metzger; Edward J. Hennessy of Hennessy & Zito represented Judy Sebek; Donald M. Hudgins and Sheryl Mulliken Fike of Hudgins, Hudgins & Warrick represented Jean Guez; James H. Barker of Giessel, Stone, Barker & Lyman represented Barbara Taylor Chase Hopkins; Alan Magenheim of Hirsch, Robinson, Sheiness & Glover represented Depelchin Children's Center; Donald B. McFall and R. Edward Perkins of McFall & Sartwelle represented Earle Lilly, Joel A. Nass, and Piro & Lilly, P.C.; and William R. Pakalka and Nancy J. Locke of Fulbright & Jaworski represented Baylor College of Medicine, Ernest Kendrick, Luisa Maria Acevedo Lohner, Ann M. Hodges, and Michael D. Cox. The Honorable W. David West presided. Attorneys John Kapacinskas (of Fulbright & Jaworski), Wade Quinn (of Giessel, Stone, Barker & Lyman), Mat Shafer (of Hirsch, Robinson, Sheiness & Glover), and Dean Barth (of Hennessy & Zito) played minor defense roles in the proceedings.

Trial lasted over a month. During the course of the trial, Judge West twice held Bradt in contempt. One of the contempt charges is the subject of this appeal, and is discussed in detail directly below.

B. The contempt of court and the verdict

Before trial, the defendants filed a joint motion in limine. In relevant part, the motion asked Judge West

to instruct plaintiff and his counsel not to mention within the hearing of any member of the Jury Panel ... by the interrogation of witnesses ... or otherwise any of the following matters, either directly or indirectly, nor refer to, nor interrogate concerning, nor otherwise apprise the Jury of any of the following matters until each such matter has been called to the Court's attention out of the presence and hearing of the Jury and a ruling had by the Court as to the competency of each matter outside of the presence and hearing of any members of the Jury or Jury Panel. It is further moved that Plaintiff and his counsel be instructed to apprise each of plaintiff's witnesses of the contents of this Motion, to the end that such Motion not be inadvertently violated by a witness....

. . . . .

That the Court enter an order precluding plaintiff, his attorneys and witnesses from mentioning or offering any evidence or testimony that plaintiff has offered to, taken or passed a lie detector test....

Judge West granted the defendants' motion in limine.

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