Bos v. Smith

• Decision Date: 10 March 2016
• Docket Number: NUMBER 13–14–456–CV
• Parties: Larry Bos and Mary Bos, Appellants, v. Craig S. Smith, individually and as next friend of M.W.F.S., a minor, and C.S.S., a minor and J.E.S., a minor, and V.A.S., a minor, Appellees.
• Court: Texas Court of Appeals

492 S.W.3d 361

Larry Bos and Mary Bos, Appellants,

v.Craig S. Smith, individually and as next friend of M.W.F.S., a minor, and C.S.S., a minor and J.E.S., a minor, and V.A.S., a minor, Appellees.

NUMBER 13–14–456–CV

Court of Appeals of Texas, Corpus Christi-Edinburg.

March 10, 2016

Supplemental Opinion by Justice Garza March 31, 2016

Kevin D. Jewell, Chamberlain, Hrdlicka, White, Williams & Martin, Houston, for Appellants.

Brandy Wingate Voss, Law Offices of Brandy Wingate Voss, PLLC, McAllen, for Appellees.

Before Justices Garza, Benavides and Longoria

OPINION

Opinion by Justice Garza

This appeal involves a suit filed by appellee Craig S. Smith, individually and as next friend of his minor children M.W.F.S., C.S.S., J.E.S., and V.A.S., against appellants Larry and Mary Bos. Following a bench trial, the trial court rendered judgment awarding over $10 million plus interest to Smith in his individual and representative capacities. On appeal, the Boses raise 21 issues challenging the judgment. We affirm in part, reverse and render in part, and reverse and remand in part.

I. Background

A. Procedural Background

Smith and his ex-wife Trisha Bos–Smith (“Trisha”) are the parents of M.W.F.S. and C.S.S. V.A.S. and J.E.S. are Smith's twin daughters from a prior relationship, whom he raised as a single parent. At the time of trial, V.A.S. and J.E.S. were fourteen years old, M.W.F.S. was eight years old, and C.S.S. was six years old.

The underlying litigation centers on undisputed allegations that Trisha falsely accused Smith on multiple occasions of sexually abusing his children. Smith, individually and on behalf of his children, sued Trisha's adoptive parents, Larry and Mary Bos, alleging in part that they “aggressively promot [ed]” the false abuse allegations, “manufactured evidence of sexual abuse between and among all Plaintiffs,” and conspired with Trisha to deprive Smith of his custody rights to M.W.F.S. and C.S.S. Smith's live petition set forth causes of action for negligence,¹ defamation, interference with custody rights under the Texas Family Code, and conspiracy.² The Boses moved to designate Trisha as a responsible third party, arguing in part that she was “negligent by fabricating the allegations of sexual abuse against [Smith], among others, by coaching M.W.F.S. to repeat such allegations, and by deceiving [the Boses] and the State authorities regarding such allegations.” See Tex. Civ. Prac. & Rem. Code Ann. § 33.004(a)

(West, Westlaw through 2015 R.S.). The trial court granted the motion.³

Prior to trial, the trial court granted partial summary judgment dismissing (1) the defamation claims against Mary, (2) the conspiracy claim insofar as it related to a conspiracy to defame Smith, and (3) the negligent undertaking claim insofar as it related to the Boses' duties under a “child safety plan” promulgated by the Department of Family Protective Services (“DFPS”) on October 23, 2008. Trial proceeded on the remaining claims.

B. Trial Testimony

Evidence adduced at trial established that Smith and Trisha were married in 2004 and had two sons, M.W.F.S., born in 2005, and C.S.S., born in 2007. Smith testified, “It was—we were well into the relationship when a lot of red flags started showing up that were just unexplainable. The deception and lying was very troubling.... The pregnancy with [M.W.F.S.] was really, really wild; and that's when things began rapidly sliding downhill as far as [Trisha's] stability was concerned.” The couple began divorce proceedings in 2006.

Following a mediation, Smith and Trisha reached an agreement regarding division of property and custody of the two boys. Under the mediated agreement, until M.W.F.S. turned three years old, Trisha would have primary custody of M.W.F.S. and Smith would have visitation arranged by a parenting coordinator. As soon as M.W.F.S. turned three years old, a standard possession order (“SPO”) would become effective under which Smith would be entitled to possession for the first, third, and fifth weekends of every month from 6:00 p.m. Friday to 6:00 p.m. Monday. The same arrangement—visitation arranged through a coordinator until age three and visitation under an SPO thereafter —would apply to C.S.S. A final decree of divorce incorporating the agreement was signed on April 25, 2007.

Before long, Smith began having difficulty arranging visits with M.W.F.S. Smith's divorce attorney, Michael Lee, stated that there were times when Trisha would not show up with M.W.F.S. at an agreed place and time. According to Lee, Smith “didn't get his visitation as agreed upon.”⁴ The parenting coordinator, unable to facilitate visitation, requested to withdraw within two months of the divorce decree. According to DFPS records, the coordinator withdrew because Trisha “made her feel uncomfortable” and the coordinator “feared that she would be [Trisha]'s next target and did not want that to happen.” Smith testified that he was only permitted to visit his sons on “a few occasions” during the year following the divorce decree.

Larry Bos testified that neither he nor Mary were given a copy of the SPO. However, Smith testified that the Boses knew of the order and knew that Smith was entitled to possession of M.W.F.S. at certain times. Smith stated that he had “discussions for several years” with the Boses regarding his “right to possess and the needs of the boys to be with their daddy.” Smith also testified that, prior to the date the SPO was to take effect with respect to M.W.F.S., he had “more than one” face-to-face meeting with the Boses in which he explained that he was having problems arranging access to the boys. According to Smith, the Boses' main concern was “attempting to induce me to reconcile with Trisha.”

The SPO was scheduled to become effective as to M.W.F.S. on his third birthday—June 19, 2008. In June and July of 2008, Smith attempted to exercise visitation twice, but Trisha refused, calling the police on one occasion. Trisha's cell phone records show long calls to the Boses before and after Smith's attempts to visit.

Smith was scheduled to have possession of M.W.F.S. on the weekend of October 17 to 19, 2008. Smith testified that, on October 14, he spoke to Mary on the phone and explained that he would pick up the child from Trisha's house as scheduled on Friday, October 17, at 6:00 p.m. When asked whether he “informed [Mary] of the order that was in effect giving you the authority to have visitation on that weekend,” Smith replied “Yes.” Nevertheless, on Friday at 4:45 p.m., Trisha advised Smith that she would not allow him to have possession of M.W.F.S. that weekend. Smith then went to Trisha's house, armed with a copy of the SPO and a video camera. When he arrived, he learned that Mary had taken M.W.F.S. to a birthday party. Trisha called the police. According to police records, Trisha explained to police “that she had been advised by her lawyer to not allow Smith to have custody of the children due to some sexual abuse allegations made against two sep[a]rate children.”⁵ Later, according to Smith, Trisha called and “told me that I thought that I had achieved a great victory this evening but in fact I had not and she was going to show me, or something like that.”

At around 8:00 the following morning, Saturday, October 18, 2008, Trisha brought M.W.F.S. and C.S.S. to Smith's house unexpectedly. Smith testified that Trisha “was in a thinly veiled rage” and that she said, “ ‘You think this is the end? This is just the beginning.’ ” Phone records show that Trisha made a call to Mary before dropping off the children, and a 16–minute call to Mary after she dropped them off. The phone records show that Trisha called 911 after the 16–minute call to Mary.

About two hours later, Trisha and Mary appeared in front of Smith's house with a police officer and a DFPS investigator.⁶ The authorities were there to investigate a claim made by Trisha that M.W.F.S. had made an outcry of sexual abuse against Smith's paralegal, Tracy Dent, who was at Smith's house that morning to work. Trisha informed police that she called M.W.F.S. after dropping him off and that M.W.F.S. reported that Dent had touched his penis. Smith, however, explained that he overheard the phone conversation between Trisha and M.W.F.S. and that M.W.F.S. did not make an outcry of abuse; instead, according to Smith, M.W.F.S. told his mother that no one touched him. The police agreed that there was no evidence of abuse and did not arrest Dent. However, DFPS insisted that Smith take M.W.F.S. to Driscoll Children's Hospital for a sexual assault nurse examiner (“SANE”) examination. Smith reluctantly did so, and doctors found no evidence of abuse. Smith then learned that Trisha was at the hospital and wanted to see M.W.F.S. Smith asked hospital staff to call 911, and he refused to allow Trisha to see M.W.F.S. But, according to Smith, hospital staff “gave [M.W.F.S.] to Trisha, and then Trisha immediately ran out the back door where the emergency room entrance is and took off running.”

Later on October 18, Trisha brought M.W.F.S. and C.S.S. to the Boses' house. According to Mary, Trisha asked her to “keep these children until we have an appointment with [DFPS].” Mary testified that Trisha told her that Trisha “had been advised by a police officer to stay away from the children until they went to [DFPS]” and that Trisha had been ordered to take a polygraph exam. Mary agreed to keep the children until October 23, when she and Larry took the children to a meeting with DFPS.

According to DFPS records, at the meeting on October 23, M.W.F.S. first denied that anyone touched him, then he reported that Smith—not Dent—“touched his penis with a fork,” cut his penis, and pulled his ear.⁷ DFPS records stated that M.W.F.S. reported that this occurred “over his clothes” and at Smith's house. As a result of the outcry, police and DFPS began investigating whether Smith had sexually abused M.W.F.S. Smith testified that this was a “nightmare” and he was “scared to the...