Metzger v. Sebek

Decision Date29 September 1994
Docket NumberNo. 01-92-00912-CV,01-92-00912-CV
PartiesMark METZGER, L.T. Bradt, and Joe Alfred Izen, Jr., Appellants, v. Judy SEBEK, Earle Lilly, Piro & Lilly, P.C., Depelchin Children's Center, Baylor College of Medicine, Ernest Kendrick, Michael D. Cox, Jean Guez, Barbara Taylor, Luisa Maria Acevedo Lohner, Ann M. Hodges, and Joel A. Nass, Appellees. (1st Dist.)
CourtTexas Court of Appeals

L.T. "Butch" Bradt, Houston, Joe Alfred Izen, Jr., Bellaire, for appellants.

Randall D. Wilkins, Edward J. Hennessy, Donald M. Hudgins, Sheryl L. Mulliken Fike, James H. Barker, M. Karinne McCullough, Alan Magenheim, Donald B. McFall, R. Edward Perkins, Richard A. Sheehy, Lauren L. Beck, Roger Townsend, Sarah B. Duncan, Jennifer Bruch Hogan, William R. Pakalka, Nancy J. Locke, Houston, for appellees.

Before DUGGAN, HUTSON-DUNN and PRICE 1, JJ.

OPINION

PRICE, Justice (Assigned).

The plaintiff in a multi-cause of action lawsuit appeals from a directed verdict against him on all causes of action. He and his trial attorneys also appeal from sanctions entered against them by the trial judge. We affirm parts of the judgment, reverse and remand parts of the judgment, and reverse and render part of the judgment. We dismiss part of the appeal for want of jurisdiction.

I. The Evidence

The trial, before it was terminated by the judge's directed verdict, lasted over a month. The following evidence was adduced, in front of the jury unless otherwise noted.

Mark Metzger (Metzger) and his wife Judy (Sebek 2) had three children: Marcus, Larry, and Danielle. In 1986, Metzger and Sebek separated. In October of that year, Metzger filed for divorce, alleging adultery. In the divorce proceeding, Metzger was represented by Burta Raborn (Raborn). Earle Lilly (Lilly) and Joel Nass (Nass) represented Sebek. Metzger was awarded sole managing conservatorship of the children, but he later agreed to joint managing conservatorship with Sebek.

The divorce case was ordered to "non-binding" arbitration in November, 1986. Metzger testified in a bill of exception that Lilly, in January, 1987, "entered a pleading in the court record requesting the--it was an order for Child Protective Services, which was infusing into the case child abuse allegations." Although the divorce court's file is in our record, no such pleading is contained within it, or anywhere else in the record. We have no pleading in our record that "infus[es] into the case child abuse allegations" in or around January, 1987.

At some point during early 1987, Larry, now three and a half years old, was enrolled in Montessori Morning Glory School (the School). On February 20, personnel at the School reported a handprint bruise on Larry's stomach to Childrens' Protective Services (CPS). According to Sebek, this was the first time that Larry manifested a sign of abuse. The CPS record indicates that the "[p]hysical abuse has been substantiated," but that the "[p]erpetrator [is] unknown." Also in March, 1987, the School's progress reports on Larry indicated that he was unable to complete his work, he attacked other children, and he cried in a "heavy, emotional, depressed" manner.

Late in April, two of Larry's teachers at the School met separately with Metzger and Sebek to convey their concerns and recommend counseling. Sebek asked one of Larry's teachers, Rebecca Kugler (Kugler), who was also the School's director, to recommend a psychologist. Kugler referred her to several psychologists, among them Barbara Taylor (Taylor). The non-binding arbitration ended, unsuccessfully, on April 28.

On April 29, Sebek and Larry met with Taylor. While Sebek and Taylor talked, Larry began playing with the dolls in the meeting room. According to Taylor, Larry's play with the dolls was disturbing:

Larry took the dolls and stripped their clothes off. I mean ... had them all undressed.... It was a frantic activity. That was the first thing that caught my attention.

The next thing that he did, which was most unusual, was he took Scotch tape ... and he taped his own mouth, after which he took the Scotch tape and bound the legs of the dolls together and taped them. He had ... a quality to his play that was eerie. [H]e would laugh and he would have this glimmer on his face that was very bizarre and strange ... and I said: There is something very wrong here.

[T]his activity and this stripping of the dolls and taping of the legs and then eventually at one point having dolls humping one another from behind and hiding under the stairwell--I have a baby doll in my office that's a regular-size baby doll that he took behind the chair. He would leer over the chair at me and undress the baby doll and always with Scotch tape over his mouth and always was taping the mouths and the legs of the dolls, and the significance of that to me was that there is something that's very secret, that he is not supposed to tell, and that the tape over his mouth is an indication of the secretiveness of this.

Based on his appearance and his play, Taylor suspected that Larry was being sexually abused.

During this first meeting between Sebek, Larry, and Taylor, Sebek told Taylor that Metzger had twice previously been reported to CPS for child abuse. Shortly after the meeting, Taylor called Marie Senegel (Senegel), the CPS case worker, and informed Senegel of her suspicions. During their conversation, Senegel told Taylor that she was planning on closing the file on Metzger. Taylor asked Senegel to keep the case open, and Senegel agreed.

Taylor also attempted to get Metzger to meet with her. These attempts were unsuccessful.

Taylor next saw Larry on May 4. At that time, Larry

reenacted the sexual theme of stripping the clothes off the dolls, taping his mouth, taping their legs, and having the dolls hump one another ... There were different configurations. Sometimes the father doll is behind the child doll ...

That same day, Taylor called Kugler to obtain some information on the Metzger family. Kugler told Taylor about an incident when Metzger knocked Larry down and kicked him in the stomach because he had tripped over his shoelace. She also related an incident in which Larry "saw a little girl with a loving father and kicked the little girl in the head." He then "cracked up and began to sob and cry." Kugler did not implicate anyone in sexual abuse.

On May 7 and May 9, Metzger, Larry, and Marcus went to see Dr. Jerome Brown (Brown), another psychologist. Dr. Brown documented the following observations and conclusions:

The evaluation results for the children reveal difficulties for both of them, especially for the youngest, Larry. They are both troubled children ... Larry ... seems to be a more disturbed child....

With regard to the specific issue of sexual abuse of [Larry], there is no clear or definite way to use the evaluation results to determine whether or not such actions ever occurred. However, it can be stated that Mr. Metzger does not exhibit the personality characteristics, behaviors, background or attitudes typically associated with individuals who do commit such inappropriate acts. The level of involvement he has with [Larry] is unusual for the typical sex offender....

In summary, the present situation involving allegations of sexual abuse by Mr. Metzger of ... Larry should be viewed with considerable skepticism, in my opinion. Mr. Metzger simply does not exhibit the characteristics, attitudes or behavioral background of individuals who molest their children....

On May 11, Brown wrote Kugler, asking her to fill out a report on Larry's "functioning at school." Dr. Kugler's response included the following remarks:

[Larry] attacks children physically by hitting, kicking, throwing things at them, pushing, pouring water on them from a drinking glass, spitting, and pulling on clothing....

He is exhibiting confusion about discipline and love, appropriate physical contact with others and other alarming behaviors.... Larry undresses dolls and physically abuses them. He has made attempts to undress shy children and sleeping children and on one occasion attempted to insert his finger into the anus of another child.... Larry places tape over his mouth when he sees tape on the art shelf of the classroom.

In late May or early June, Kugler and another teacher met with Metzger and Sebek to discuss Larry's behavior at the School, which had worsened. Kugler told Metzger and Sebek that Larry "was showing signs of sexual acting-out behavior, that the boy had become more aggressive, he was hitting other children...." Kugler requested that Metzger and Sebek remove Larry from the School because of his "aggressive behavior." Kugler also told Metzger and Sebek that, as a result of Larry's sexual acting-out, the School was going to report to CPS about Larry's sexually oriented behavior.

On June 2, Sebek moved the court to conduct a social study. Lilly suggested that the court appoint Dr. Jean Guez (Guez), a psychologist, to conduct the study. Raborn spoke to court personnel about Guez and approved Lilly's suggestion. The court appointed Guez, specifying that she should "perform psychological testing and evaluation of the children and the parties" and to make a written report of her findings to the court.

On June 3, Kugler reported to Senegel at CPS. Another CPS worker in turn reported to the Houston Police Department (HPD). HPD assigned Officer Sherry Turner Anderson (Anderson) to the case.

On June 4, Senegel called one of Larry's other teachers at the School. The teacher confirmed that Larry had been sexually acting-out in class.

On June 10, Senegal visited Metzger and Larry at Metzger's home. Senegel discussed "inappropriate touching" with Larry:

We discussed the parts of the body utilizing the anatomically correct dolls and he was easily able to name all parts including the private part area. We then discussed good and bad touches. I asked if anyone had given him a bad touch and he said...

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