                                                                                          ACCEPTED
                                                                                      01-15-00692-CV
                                                                           FIRST COURT OF APPEALS
                                                                                   HOUSTON, TEXAS
                                                                                 8/18/2015 2:56:08 PM
                                                                                CHRISTOPHER PRINE
                                                                                               CLERK

                            No. 01-15-00692-CV
                    _________________________________
                                                          FILED IN
                                                   1st COURT OF APPEALS
                     IN THE COURT OF APPEALS           HOUSTON, TEXAS
                          FIRST DISTRICT           8/18/2015 2:56:08 PM
                         HOUSTON, TEXAS            CHRISTOPHER A. PRINE
                                                           Clerk
 _________________________________________________________________

   IN RE MOTHER DOE AND FATHER DOE, INDIVIDUALLY AND
         AS NEXT FRIENDS OF JOHN DOE AND JANE DOE
__________________________________________________________________

              Original Proceeding from Cause No. 1045092 in
             County Court at Law No. 2, Harris County, Texas
                Honorable Theresa Chang, Presiding Judge
__________________________________________________________________

   REAL PARTY IN INTEREST, BETH YESHURUN DAY SCHOOL’S
                    MOTION FOR SANCTIONS
__________________________________________________________________

TO THE HONORABLE COURT OF APPEALS:

      Pursuant to Texas Rule of Appellate Procedure 52.11, Beth Yeshurun Day

School files this Motion for Sanctions with regard to Relators’ third groundless

Petition for Writ of Mandamus and in support would respectfully show as follows:
                                     I.
                               INTRODUCTION

      As this Court may recall from two prior mandamus proceedings, this

litigation arises from a dispute between Defendant/Real Party in Interest, Beth

Yeshurun Day School (“BYDS” or “Defendant”)—a highly regarded private

Jewish pre-school and elementary school—and the Plaintiffs/Relators, Mother and

Father Doe, who are parents of two minor students previously enrolled in BYDS.

Relators allege that BYDS breached its contract by unjustly expelling the two

minors from the school and negligently allowing John Doe to be bullied by

students and teachers. BYDS unequivocally denies Relators’ allegations.

      Since the onset of the parties’ dispute, Relators have threatened to litigate

and have in fact litigated this case extensively in the media (particularly social

media) in an effort to damage BYDS’s reputation, all the while hiding behind a

cloak of anonymity. The case law clearly does not permit Mother Doe and Father

Doe to shroud their identities in secrecy while subjecting BYDS to serious and

potentially damaging allegations.    The trial court therefore acted within its

discretion in striking the adult Plaintiffs’ pseudonyms. Relators’ counsel even

acknowledged the trial court’s discretion to do so during a June 2, 2015 hearing on

BYDS’s motion. Yet Relators have nevertheless filed this, their third groundless

mandamus action, for the sole purpose of harassing BYDS, delaying this litigation,




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and causing BYDS to incur substantial litigation expenses. Relators and their

counsel1 should be sanctioned for such bad faith conduct.

                                        II.
                                PROCEDURAL HISTORY

       Relators have repeatedly filed groundless petitions for writ of mandamus for

the purpose of harassing BYDS and with the intent to interfere with, impede, and

delay the administration of justice. This third mandamus action is yet another

abusive litigation tactic, and Relators and their counsel should be sanctioned for

such conduct.

       BYDS has already expended vast sums of attorney’s fees defending two

prior mandamus actions which were groundless.                      Relators’ first mandamus

complained of a “gag order” which had already expired by its own terms; this

Court accordingly dismissed the mandamus proceeding as moot after BYDS filed a

response enlightening the Court to the pertinent facts. See In re Doe, No. 01-14-

00369-CV, 2014 WL 3199145 (Tex. App.—Houston [1st Dist.] July 8, 2014) (not

designated for publication). Relators’ second mandamus complained of the entry


1
   Relators’ counsel, Brian Cweren, injected himself as a material witness in this litigation by
submitting an affidavit in support of Relators’ lawsuit. See Relators’ App. Tab 8, Exhibit 1
(Affidavit of Brian Cweren). He subsequently withdrew the affidavit after realizing he was
subject to cross-examination as well as disqualification. Cweren has also made it his personal
vendetta to try and destroy BYDS. See, e.g., Relators’ App. Tab 3, Exhibit E (April 29, 2014
hearing transcript at p. 36) (“"This school is going to end up losing any license it has. At the end
of the day, that is what is going to happen here. This school will hopefully not exist
anymore…”); and Relators’ App. Tab 3, Exhibit C, p. 65 (Crewen Facebook post stating “School
case is going well. I hope to have some school furniture to liquidate in the near future.”).


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of a protective order for which there was an adequate remedy by appeal. Again,

after BYDS filed its response, this Court denied Relators mandamus relief. See In

re Doe, No. 01-15-00112-CV, 2015 WL 1743394 (Tex. App.—Houston [1st Dist.]

April 16, 2015) (not designated for publication).               In response to the second

mandamus petition, BYDS noted that Relators grossly misstated the facts and

mischaracterized the record. BYDS contemplated seeking sanctions at that time

but chose not to escalate Relators’ animosity. Relators’ bad faith has continued,

however, necessitating the present Motion for Sanctions.

                                     III.
                            GROUNDS FOR SANCTIONS

       Relators know that they are not entitled to mandamus relief from the trial

court’s order striking the adult Plaintiffs’ pseudonyms.2 Mandamus is appropriate

only when the relator demonstrates that the trial court clearly abused its discretion

and there is no adequate remedy by appeal. See In re Reece, 341 S.W.3d 360, 364

(Tex. 2011) (orig. proceeding). A trial court abuses its discretion if “it reaches a

decision so arbitrary and unreasonable as to amount to clear and prejudicial error

of law.”     See Walker v. Packer, 827 S.W.2d 833, 839 (Tex. 1992) (orig.

proceeding). With respect to matters committed to the trial court’s discretion, the

relator must establish that the trial court could have reached but one decision, and

2
  Counsel for BYDS advised Relators’ counsel that BYDS would seek sanctions if he proceeded
with filing a groundless petition for writ of mandamus in bad faith. See Exhibit A, June 10, 2015
letter to Brian Cweren.


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not the decision it made. Id. The reviewing court cannot disturb the trial court’s

ruling unless it is shown to be arbitrary and unreasonable. Id.

       During the June 2, 2015 hearing, Relators’ counsel, Todd Newman,

conceded it was within the trial court’s discretion to grant or deny Defendant’s

Motion to Strike Adult Plaintiffs’ Use of Pseudonyms based on the evidence. See

RR2 (June 2, 2015 hearing transcript) at p. 37 (“I think it would be more accurate

to say it’s [the evidentiary threshold is] left to the strong discretion of the Court.”).

The record proves that the trial court’s decision was not arbitrary or unreasonable.

Id. at pp. 63-68.      To the contrary, the trial court followed guiding principles of

law, including Doe v. Stegall, 653 F.2d 180, 185 (5th Cir. 1981)3 (weighing

privacy rights against the “customary and constitutionally-embedded presumption

of openness in judicial proceedings”). Id.

       As demonstrated in BYDS’s briefing made part of the mandamus record,

there is a plethora of case law confirming that plaintiffs may only prosecute

lawsuits under fictitious names in exceptional circumstances.                    See Relators’

Appendix Tabs 2, 3, 5, 7, and 9. Indeed, numerous courts have refused anonymity

under circumstances similar to—or even much more sensitive and personal than—

the present. See, e.g., Doe v. Beaumont Indep. Sch. Dist., 172 F.R.D. 215, 216

(E.D. Tex. 1997) (denying minor students’ motion for reconsideration of order

3
  As noted in Relators’ Petition, both parties rely on federal case law because there is a “dearth
of analysis on this issue” by Texas courts. See Petition for Writ of Mandamus at p. 14, n. 8.


                                                5
denying request to proceed anonymously in action against school district for

violation of the Establishment Clause); Rose v. Beaumont Indep. Sch. Dist., 240

F.R.D. 264, 269 (E.D. Tex. 2007) (holding that sexual assault victim was not

allowed to prosecute lawsuit against school using a pseudonym).           This is so

because filing a lawsuit against private parties “may cause damage to their good

names” and “basic fairness” dictates that accusers who wish to participate in a suit

like Plaintiffs’ must do so under their real names to protect the public’s interest in

knowing the facts. Southern Methodist Univ. Ass’n of Women Law Students v.

Wynne & Jaffe, 599 F.2d 707, 713 (5th Cir. 1979).

      Further, requiring the adult Plaintiffs to prosecute the lawsuit in their real

names does not violate Texas Rule of Civil Procedure 21c, which protects the

identity of minors. In fact, it is common practice for Texas courts to require

identification of adult parties by name while simultaneously using initials for

minor relatives to remain anonymous. See, e.g., Motley v. State, No. 01-07-00517-

CR, 2008 WL 5102340, at *1 (Tex. App.—Houston [1st Dist.] Dec. 4, 2008, pet.

ref’d) (noting criminal defendant accused of sexually assaulting his grandchildren

was identified by his actual name, while grandchildren were identified by their

initials); A.W. v. Humble Indep. Sch. Dist., No. H-13-3551, 2014 WL 2611810, at

*1 (S.D. Tex. June 11, 2014) (minor plaintiff identified by her initials and co-

plaintiff mother identified by actual name in suit against school district in



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connection with alleged sexual assault of minor plaintiff). The trial court clearly

acted within its discretion in striking the adult Plaintiffs’ pseudonyms, and

Relators’ mandamus action is therefore groundless and designed merely to impede

justice.

       Texas Rule of Appellate Procedure 52.11 allows the appellate court to

impose sanctions on a party or attorney who files a petition that is clearly

groundless or filed solely for the purpose of delay. The Rule provides that a court

may, on motion of any party or on its own initiative – after notice and a reasonable

opportunity to respond, impose just sanctions on a party or attorney who is not

acting in good faith as indicated by one of the following:

       (a) filing a petition that is clearly groundless;

       (b) bringing the petition solely for delay of an underlying proceeding;

       (c) grossly misstating or omitting an obviously important and material fact in

       the petition or response; or

       (d) filing an appendix or record that is clearly misleading because of the

       omission of obviously important and material evidence or documents.

TEX. R. APP. P. 52.11.

       Rule 52.11 exists to rectify situations exactly like the present. See, e.g.,

Twist v. McAllen National Bank, 248 S.W.3d 351 (Tex. App.—Edinburg 2007,

orig. proceeding [mand. denied]) (imposing sanctions against Relator’s counsel for



                                            7
bringing second groundless petition for writ of mandamus “knowingly and in bad

faith”); In re Lincoln, 114 S.W.3d 724 (Tex. App.—Austin 2003, orig. proceeding)

(issuing order to show cause where Relator filed second groundless petition for

writ of mandamus).

      Here, Relators’ third mandamus petition is clearly frivolous given the vast

body of case law opposing anonymity in these circumstances and Relators’

counsel’s own admission that this was a matter over which the trial court had broad

discretion.   Additionally, Relators’ counsel has repeatedly used mandamus

petitions as a means to delay proceedings in the trial court.          Consequently,

Relators’ mandamus petition is groundless and filed solely for the purpose of

harassment. BYDS anticipates that Relators will continue to abuse the litigation

process unless and until they are sanctioned for filing meritless pleadings.

      BYDS is aware that sanctions imposed must be proportionate to the wrong

and bear a direct relationship to the offensive conduct. TransAmerican Natural

Gas Corp. v. Powell, 811 S.W.2d 913, 917 (Tex. 1991). Relators and their counsel

are both at fault for engaging in a pattern of filing baseless petitions for writ of

mandamus. Further, it is evident that Relators’ relentless and vexatious filings

have unduly burdened BYDS. As noted above, BYDS has twice been forced to

incur substantial legal fees in order to respond to Relators’ groundless pleadings.

Relators’ abusive conduct additionally burdens the judicial system itself. This



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Court has already wasted valuable resources determining that Relators’ first and

second mandamus actions were meritless. As an appropriate sanction, to both

punish and deter, BYDS requests that the Court impose monetary sanctions against

Relators and their counsel jointly in the amount of $15,000 − $5,000 for each of

Relators’ three groundless petitions.4

                                           IV.
                                         PRAYER

       Real Party in Interest, Beth Yeshurun Day School, respectfully prays that its

Motion for Sanctions be granted and for all such other and further relief, both at

law and in equity, to which it may be justly entitled.

                                           Respectfully submitted,

                                           /s/ Barbara L. Hachenburg
                                           Barbara L. Hachenburg
                                           State Bar No. 08667070
                                           bhachenburg@germer.com
                                           Kelli B. Smith
                                           State Bar No. 24008053
                                           ksmith@germer.com
                                           GERMER PLLC
                                           Three Allen Center
                                           333 Clay Street, Suite 4950
                                           Houston, Texas 77002
                                           (713) 650-1313 – Telephone
                                           (713) 739-7420 – Telecopier




4
   As an alternative, and at the Court’s request, BYDS will submit an attorney’s fee affidavit
setting forth its fees and expenses incurred in responding to Relators’ mandamus petitions.


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                                      Michael Patrick Doyle
                                      State Bar No. 06095650
                                      DOYLE LLP
                                      2402 Dunlavy Street, Suite 200
                                      Houston, Texas 77006
                                      (713) 554-9079 – Telephone
                                      (713) 571-1148 – Telecopier
                                      mdoyle@doylelawfirm.com

                                      ATTORNEYS FOR REAL PARTY
                                      IN INTEREST, BETH YESHURUN
                                      DAY SCHOOL


                      CERTIFICATE OF CONFERENCE

      I hereby certify that I attempted to confer with Relators’ counsel, Brian
Cweren, on the morning of August 18, 2015 regarding the subject of this Motion
and the relief sought herein. He was unavailable. His paralegal said I would have a
response by 1:30 pm on August 18th and I did not. Based on prior written
communications with Mr. Cweren, I am certain that Relators are opposed to this
Motion.

                                          /s/ Barbara L. Hachenburg
                                          Barbara L. Hachenburg



                         CERTIFICATE OF SERVICE

      I hereby certify that on the 18th day of August, 2015, a true and correct copy
of the foregoing Motion for Sanctions was forwarded to all known counsel of
record in accordance with the Texas Rules of Appellate Procedure.

                                          /s/ Barbara L. Hachenburg
                                          Barbara L. Hachenburg




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