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2012-10-25

Schaefer's lawsuit settled for $2,500

By Judith Pannebaker BCC Editor

Civil litigation that began with a bang - and extensive print coverage in newspapers in both San Antonio and Bandera - has apparently ended with a monetary whimper.
A lawsuit brought against John Payne, Linda James and others by attorney Stephen Schaefer on behalf of his clients, Jane Doe and a minor child, Joan Doe, has been settled for a mere $2,500. This amount was apparently decided on just prior to Friday, Oct. 5, when the court was set to hear Payne's motion to dismiss the lawsuit.
The civil litigation centered on the alleged rape of Joan Doe by a minor boy in 2011. At the time of the purported rape, Joan Doe was 11 years old and her ostensible attacker, 13. The lawsuit also named as defendants the minor boy and his father, as well as three other minor boys.
Litigation against James, an employee in the county attorney's office, had been dismissed earlier.
$2,500 'with prejudice'
On Oct. 5, the date of a scheduled motion-to-dismiss hearing, Schaefer and his clients hammered out the $2,500 settlement with Payne's attorney, Michael Shaunessy of the Austin law firm of Sedgwick, LLP. District Judge Keith Williams signed the order of dismissal with prejudice, which bars the case being refiled on the same basis at a later date. In other words, once dismissed with prejudice a legal case is over and done with - once and for all - and cannot be brought back to court.
Additionally, as prescribed by law, a guardian ad litem was appointed to protect the interests of Joan Doe, now 12. As the motion stated: "Due to the potential for a conflict to arise between Jane Doe and minor child Joan Doe during the course of concluding the settlement, the parties requested a court appointed guardian ad litem to represent the minor plaintiff and safeguard her interests."
The motion continued: "There is, at a minimum, the potential that adverse interests may arise. A guardian ad litem is necessary because there is a finite amount of money to be distributed between Jane Doe and Joan Doe."
A guardian ad litem makes decisions for a person who cannot legally or factually make those decisions for himself. Accordingly, Williams appointed Comfort attorney Chris Wallendorf as guardian ad litem.
In that capacity, Wallendorf will decide how the $2,500 settlement will be divvied up among Schaefer, Jane Doe and the minor child, Joan Doe. The settlement, which was paid by Bandera County's insurance carrier, was calculated to be less than the cost of another pre-trial hearing.
2011 alleged rape
Filed March 23, Schaefer's civil action stemmed from an alleged rape that purportedly occurred in March or April 2011, but that went unreported until September 2011. The incident supposedly involved the son of a private practice client of Bandera County Attorney John Payne.
After learning that investigators with the Bandera County Sheriff's Office had requested to interview the boy on a law enforcement matter unrelated to a child custody dispute, Payne informed his client that he could not represent him in this matter. Payne also advised the man to retain an attorney for his son and not to allow the juvenile to be interviewed by law enforcement officers without legal representation.
Schaefer's civil litigation contended that both Payne and James, "while engaged in a cover-up," used the office of the county attorney to "wrongfully, inappropriately and clandestinely" access confidential, privileged information from the BCSO on the so-called crime. The filing also accused Payne and James of passing the information to the accused juvenile male through his father, who Payne was representing in his private law practice.
Motion to dismiss
Acting on behalf of Payne, Shaunessy had filed two motions to dismiss the lawsuit, one on July 13 and an amended motion on Sept. 28. In his amended motion, Shaunessy noted that the claims against Payne were based on the assertion that his client had taken action that interfered with the BCSO investigation into the alleged sexual attack.
As Shaunessy pointed out, lead investigator Cpl. Cherie Green stated under oath that Payne did not "manipulate or inhibit" the investigation and was not attempting to interfere. She also believed that Payne had not violated any ethical obligations.
"The warnings Payne gave to the parent of a minor regarding being interviewed by a police officer are required by law and are given to every juvenile witness before and after they are interviewed. These standard warnings form the basis of the plaintiff's complaints against Payne in this suit," Shaunessy wrote.
Additionally, during a recorded conversation between Payne and Green, Payne had made it clear, from the onset, that he represented an involved party in an unrelated matter, the motion stated.
In his original 38-page petition, Schaefer also excoriated Payne because of what he deemed Payne's "wrongful conduct," "misconduct," "conflicts of interest," "official misconduct," "obstruction of justice" and "additional wrongful conduct and causes of action ..."
"Texas does not recognize any of these claims or causes of actions," Shaunessy wrote. "Moreover, nowhere within those sections of plaintiff's original petition does it state any claims or causes of actions under Texas law." Prior to the settlement, he gave Schaefer 15 days to "re-plead, with specificity, causes of action recognized under Texas law ..."
Investigation proceeded
Shaunessy also took exception to the contention that Schaefer's client, Jane Doe, mother of the alleged rape victim, had been "damaged" by Payne's ostensible actions. As Shaunessy's motion to dismiss pointed out, the investigation proceeded and a special prosecutor, attorney Jerry Phillips of Kerrville, was appointed to the case.
"The special prosecutor has been evaluating the case and whether to present the evidence to a grand jury," Shaunessy wrote. In fact, in his motion, Shaunessy noted that, according to Schaefer, Phillips intends to bring the alleged rape case before the Bandera Grand Jury on Monday, Nov. 26.
"If a grand jury indicts any person in connection with the alleged sexual assault, then the independent prosecutor will pursue the matter through trial and, if necessary, on appeal. Thus, none of Payne's actions prevented the prosecution of any alleged criminal activity," Shaunessy concluded.
Special prosecutor Phillips could not be contacted for this article.