Kozel v. Kozel

Decision Date08 March 2018
Docket NumberCivil Action No.: 7:16–cv–01672–JMC
Citation299 F.Supp.3d 737
CourtU.S. District Court — District of South Carolina
Parties David F. KOZEL, Plaintiff, v. Deborah L. KOZEL, Michael E. Spears, Esq., Dallas C. Kozel, and India L. Kozel, Defendants.

Bakari Sellers, Strom Law Firm, Karl S. Bowers, Jr., Bowers Law Office, Columbia, SC, Patrick R. Malone, Heather S. Heidelbaugh, Leech Tishman Fuscaldo & Lampl, Pittsburgh, PA, for Plaintiff.

James Mixon Griffin, Margaret Nicole Fox, Margaret N. Fox, Griffin & Davis, LLC, Catharine Garbee Griffin, Baker Ravenel and Bender, Columbia, SC, Jason T. Shipp, Goldberg, Persky, Jennings & White, David L. Haber, Amy J. Coco, Weinheimer, Schadel & Haber, Pittsburgh, PA, Dennis John Roman, Rebecca G. Yanos, Timothy R. Stienstraw, Charlene S. Seibert, Marshall Dennehey Warner Coleman and Goggin, Pittsburgh, PA, Andrew Addison Mathias, William W. Wilkins, Greenville, SC, for Defendants.


J. Michelle Childs, United States District Judge

Plaintiff David Kozel asserts claims of civil conspiracy, common law malicious prosecution, abuse of process, defamation per se , intentional infliction of emotional distress, and malicious prosecution arising under 42 U.S.C. § 1983 against Defendant Michael E. Spears, Esq. ("Defendant Spears") (ECF No. 90 at 42–43 ¶¶ 220–26, 46–51 ¶¶ 241–72, 54–55 ¶¶ 298–308.) This matter is before the court on Defendant Spears' Second Motion for Judgment on the Pleadings. (ECF No. 270.) Defendant Spears brings this Motion under Fed. R. Civ. P. 12(c) on the grounds that he is immune from liability because his alleged conduct in providing counsel to Defendants Dallas Kozel, India Kozel, and Deborah Kozel (collectively the "Kozel Defendants") was within his professional capacity as an attorney on their behalf. (See ECF No. 270 at 3 ¶ 15.) For the reasons stated herein, the court GRANTS IN PART and DENIES IN PART Defendant Spears' Motion for Judgment on the Pleadings.


Plaintiff initially filed his Complaint in this case on August 8, 2014, in the United States District Court for the Western District of Pennsylvania against Defendants Dallas Kozel ("Dallas"), Deborah Kozel ("Deborah"), India L. Kozel ("India"), Detective Scott J. Rick ("Detective Rick"), and Defendant Spears (collectively "Defendants"). (ECF No. 1–1.) Plaintiff's claims against Defendants arise from criminal charges brought against him for the alleged sexual abuse of his daughters, Dallas and India. (ECF No. 90 at 3 ¶ 14.)

Plaintiff and Deborah were married in 1994, but they separated in 1998, and were divorced in 2002. (Id. at 6 ¶¶ 28, 31, 7 ¶ 35.) In June 2004, both Deborah and Plaintiff were given shared custody of Dallas and India. (Id. at 7 ¶ 36.) In February 2007, the Superior Court of Pennsylvania affirmed an order requiring Plaintiff to pay $6,344 per month in child support until each child reached the age of eighteen (18). (Id. at 8 ¶ 43; ECF No. 90–1 at 18.) In March 2008, Deborah initiated a Petition for modification of child support in the Family Division of the Court of Common Pleas of Allegheny County, Pennsylvania. (Id. at 8 ¶ 46; ECF No. 90–2.) This Petition was dismissed without a hearing and affirmed by the Pennsylvania Superior Court, but Deborah filed another Support Complaint in May 2012 in the Family Court of the Seventh Judicial Circuit in South Carolina. (ECF No. 90 at 12 ¶ 71; ECF No. 90–3.) In addition to filing this Support Complaint, Plaintiff alleges that because Dallas was about to turn eighteen, "Deborah [ ] was concerned [that] the child support payments she received from Plaintiff would be reduced," and therefore wrote a letter to Plaintiff demanding that Plaintiff quadruple his monthly child support until each daughter turned twenty-one (21)." (ECF No. 90 at 12–13 ¶¶ 72–73; ECF No. 90–4.) In August 2012, the Family Court of the Seventh Judicial Circuit in South Carolina dismissed the Support Complaint for lack of personal jurisdiction. (ECF No. 90 at 13 ¶ 74; ECF No. 90–5.)

Plaintiff alleges that the Kozel Defendants created a scheme to have Plaintiff "investigated and arrested," and that it may be tied to Deborah's requests for increased child support. (Id. at 5 ¶ 26, 9 at ¶ 51.) In November 2012, Deborah filed a Petition to modify the existing child support order between Plaintiff and her in the Family Division of the Allegheny Court of Common Pleas, seeking an increase in child support. (ECF No. 90 at 13 ¶ 77.) Deborah and Plaintiff consented to the dismissal of this Petition, and Deborah refiled her Petition in Texas, which is where Plaintiff resided.1 (Id. at ¶ 78.)

Plaintiff alleges that, despite his daughters engaging in several counseling and therapeutic sessions over a period of several years, they alleged for the first time between December 2012 and January 2013 that he sexually abused them. (ECF No. 90 at 4 ¶¶ 16–19, 6–7 ¶¶ 33–34, 7 ¶¶ 39–40, 45, 9 ¶¶ 48–52.) These allegations were revealed when Plaintiff's daughters began treatment with Defendants Juliana Hamilton, LPC ("Hamilton") and Kimberly Rosborough, LISW–CP ("Rosborough") who are employed by Defendants Spring Ridge Academy in Arizona and Turning Leaves for Children, LLC in South Carolina, respectively.2 (Id. at 5 ¶¶ 24–25, 7 ¶¶ 39–40.) More specifically, Plaintiff alleges that Hamilton and Rosborough treated his daughters with Eye Movement Desensitization and Reprocessing Therapy ("EMDR") resulting in the implantation of their alleged false memories of sexual abuse (Id. at 5 ¶¶ 24–25.) Plaintiff alleges that "[o]n December 21, 2012, Rosborough, counselor for both [Dallas and India] and a friend of Deborah [ ], wrote in her clinical notes [that Mom said it was okay for Kimberly to talk with India about Plaintiff touching Dallas and India in the bathtub]." (Id. at 14 ¶ 82; ECF No. 90–6.) Plaintiff alleges that this note "evidences coordination amongst defendants, twenty (20) days prior to the ‘alleged’ first revelation [of sexual abuse]." (ECF No. 90 at 14 ¶ 83.)

Plaintiff alleges that "[o]n January 7, 2013, approximately one month prior to her eighteenth birthday and immediately before child support was to terminate, Dallas, [ ] for the first time, accused [Plaintiff] of sexually assaulting and physically abusing her as a child." (ECF No. 90 at 20 ¶ 112.) Plaintiff further alleges that Dallas' oral allegations regarding the nature of Plaintiff's sexual abuse were in contradiction with her written statement given to the Yavapai County, Arizona Sherriff's Department. (See id. 22 at ¶ 129, 23–24 ¶¶ 131, 133; ECF Nos. 90–9, 90–10.) In February 2013, Dallas and India also met with Detective Rick and detailed the nature of Plaintiff's sexual abuse. (ECF Nos. 90 at 26 ¶ 146, 27 ¶ 153; 90–11 at 7–11.) India and Dallas both met with Detective Rick again in June and July 2013 respectively, and Plaintiff alleges that their allegations were "materially different, contained numerous discrepancies and were largely inconsistent [with their statements during their first interview with Detective Rick]." (ECF No. 90 at 29 ¶¶ 161–62, 165–66; ECF No. 90–11 at 7–11.) Dallas provided a handwritten narrative after her July 2013 meeting with Detective Rick, which detailed how Plaintiff physically abused her. (ECF No. 90 at 31 ¶ 171, 173–74; ECF Nos. 90–17; 90–18.)3

In March 2013, "six days after Dallas and India made allegations of sexual abuse against [Plaintiff] to Detective Rick," Deborah filed another Petition to modify child support in the District Court of the 303rd Judicial District in Dallas County, Texas seeking to "indefinitely extend child support into the girls' adult life." (ECF No. 90 at 28 ¶ 156; ECF No. 90–12.) In July 2013, the District Court reduced Plaintiff's child support payment obligations to $1,239.92, and limited it to only India (a departure from the original obligation of $6,344 for both daughters). (ECF No. 90 at 32 ¶ 177; ECF No. 90–14.)

On August 5, 2013, Detective Rick filed a Criminal Complaint and filed for an arrest warrant for Plaintiff. (ECF No. 90 at 32 ¶ 178, 35 ¶ 188; ECF No. 90–15.) Sometime in August 2013, Plaintiff turned himself in. (ECF No. 90 at 35 ¶ 190–91.) A preliminary hearing was held in November 2013, and Plaintiff's criminal trial in the Court of Common Pleas of Allegheny County, Pennsylvania, Criminal Division began in July 2014. (Id. at 40 ¶ 204, 41 ¶ 213.) That court ultimately dismissed the charges against Plaintiff following a non-jury criminal trial. (Id. at 41 ¶¶ 213–14.)

Plaintiff filed an Amended Complaint on September 22, 2014, and a Second Amended Complaint on January 20, 2015, in the District Court for the Western District of Pennsylvania. (ECF Nos. 39, 90.) Detective Rick, the Kozel Defendants, and Defendant Spears filed respective Motions to Dismiss Plaintiff's Second Amended Complaint for failure to state a claim. (ECF Nos. 93, 96, 99.) On February 16, 2015, the Kozel Defendants filed a Motion to Transfer Venue to this court. (ECF No. 102.) On August 6, 2015, the District Court for the Western District of Pennsylvania granted Detective Rick's Motion to Dismiss (ECF No. 93). (ECF No. 163.) On August 10, 2015, that court denied without prejudice the Kozel Defendants and Defendant Spears' Motions to Dismiss (ECF Nos. 96, 99), stating that the issues raised in the Motions should be raised on summary judgment "at the appropriate time." (ECF No. 164.) On the same day, that court also denied without prejudice the Kozel Defendants' Motion to Transfer Venue (ECF No. 102). (ECF No. 165.)

On August 31, 2015, Defendant Spears and the Kozel Defendants answered Plaintiff's Second Amended Complaint. (ECF Nos. 166, 167.) The Kozel Defendants filed an Errata Answer on September 1, 2015. (ECF No. 171.) In addition to filing an Answer, the Kozel Defendants filed a Renewed Motion to Transfer Venue to this court, and Plaintiff responded. (ECF Nos. 168, 198.) Defendant Spears also filed a Motion to Transfer...

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  • C. Elements Defined
    • United States
    • Elements of Civil Causes of Action (SCBar) 26 Legal Malpractice
    • Invalid date
    ...arising out of performance of professional activities). See also Fleming v. Asbill, 42 F.3d 886 (4th Cir. 1994); Kozel v. Kozel, 299 F. Supp. 3d 737, 761 (D.S.C. 2018) (where there was a dispute as to existence of an attorney-client relationship, an essential element of affirmative defense ......

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