Vanessa Velez Labrado v. Leith Labrado, Laboe Labrado and Three R's School, LLC ( 2024 )

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
44Z3116 - 2/15/2024 11:51 AM
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.
1
44Z3116 - 2/15/2024 11:51 AM
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.
2
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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.
3
44Z3116 - 2/15/2024 11:51 AM
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.
4
44Z3116 - 2/15/2024 11:51 AM
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.
5
44Z3116 - 2/15/2024 11:51 AM
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.
6
44Z3116 - 2/15/2024 11:51 AM
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.
7
44Z3116 - 2/15/2024 11:51 AM
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.
8
44Z3116 - 2/15/2024 11:51 AM
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.
9
44Z3116 - 2/15/2024 11:51 AM
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.
10
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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.
11
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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.
12
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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.
13
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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.
14
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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.
15
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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.
16
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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.
17
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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.
18
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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).
19
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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.
20
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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
21
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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,
22
44Z3116 - 2/15/2024 11:51 AM
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).
23
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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).
24
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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.
25
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“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
26
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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).
27
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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
28
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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.
29
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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).
30
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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.
31
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[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.
32
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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.
33
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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.
34
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(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
35
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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.
36
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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.
37
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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.
38
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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.
39
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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
196
40
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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
41
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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.
42
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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.
43
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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.
44
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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.
45
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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.
46
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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).
47
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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.
48
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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.”).
49
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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.
50
44Z3116 - 2/15/2024 11:51 AM
 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.
51
44Z3116 - 2/15/2024 11:51 AM
 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.
52
44Z3116 - 2/15/2024 11:51 AM
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.
53
44Z3116 - 2/15/2024 11:51 AM
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.
54
44Z3116 - 2/15/2024 11:51 AM
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.>
55
44Z3116 - 2/15/2024 11:51 AM
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
56
44Z3116 - 2/15/2024 11:51 AM
APPENDIX
44Z3116 - 2/15/2024 11:51 AM
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.
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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
2463
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.
2
2464
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.
3
2465
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
4
2466
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
5
2467
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:
6
2468
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.
7
2469
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
8
2470
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)
9
2471
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.
10
2472
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:
11
2473
014
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:
12
2474
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:
13
2475
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
14
2476
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
15
2477
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
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16
2478
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%.
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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:
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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
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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