ar INTHE &? DISTRICT COURT DARRIN OPAITZ Plaintiff, v. GANNAWAY WEB HOLDINGS, L.L.C.,d/b/a WORLDNOW; RAYCOM MEDIA, INC. d/b/a KCBD-TV NEWSCHANNEL 11; and JAMES CLARK, Individually Defendants. OF BAAABOAaaaaag LUBBOCK COUNTY, TEXAS PLAINTIFFS’ ORIGINAL PETITION TO THE HONORABLE JUDGE OF SAID COURT NOW COMES, Darrin Opaitz, Plaintiff herein, and files this Original Petition complaining of Gannay Web Holdings, L.L.C. d/b/a Worldnow, Raycom Media, Ine. d/b/a KCBD-TV News Channel 11, and James Clark, individually, asserting causes of action for continuing defamation by libel, invasion of privacy by public disclosure of private facts, and seeks declaratory relief that invasion of privacy is a Constitutional Tort under the Texas Constitution, in support of which Plaintiff respectfully shows the following: 1. Discovery Control Plan 1. The nature of this cause is such that discovery should be conducted under Discovery Control Plan Level 2, pursuant to TEX. R. Civ. P. 190.2, However, Plaintiff reserves the right to request entry of an order establishing a Level 3 discovery control plan. ORIGINAL PETITION - 1 of 25Parties 2. Plaintiff Darrin Opaitz (“Opaitz”) is a “private” individual who previously resided in Lubbock County, Texas. 3. Defendant Gannaway Web Holdings, LLC is a Delaware corporation doing business as Worldnow in Lubbock County, Texas and can be served through its registered agent, CT Corporation Systems, 350 N. St. Paul Street, Suite 2900, Dallas, Texas 75201. 4. Defendant Raycom Media, Inc. is a Delaware corporation doing business as KCBD-TV News Channel 11 in Lubbock County, Texas and can be served through its President and CEO, Paul Tear at his office, Raycom Media, RSA Tower, 20th Floor, 201 Monroe St., Montgomery, Alabama 36104. 5. Defendant James Clark is the Executive Producer of KCBD-TV News Channel 11, and is an individual residing in Lubbock County, Texas and may be served with process at his office, 5600 Ave. A, Lubbock, Texas 79404. tt lic 6. This Court has jurisdiction over the subject matter of this case because the amount in controversy exceeds this Court’s minimum jurisdictional requirements. As master and commander of his lawsuit, Plaintiff asserts no federal claims. 7 This Court has personal jurisdiction over Defendants because Defendants conduct business in this state and Defendants have committed a tort in this state. 8. Venue for this case is proper in Lubbock County, Texas because all or a substantial part of the events or omissions giving rise to the claim occurred in said county. Civ. PRAC. & REM. CODE § 15.002(a)(1) ORIGINAL PETITION - 2 of 25IV. Factual Background 9. Plaintiff's Good Reputation Prior to being Defamed: Darrin Opaitz served the Lubbock community as a police officer for over seventeen (17) years. Among his assignments while with the Lubbock Police Department were Patrol Division, Accident Investigation, and Special Operations, in addition to several special duty assignments requiring a high degree of reliability for trustworthiness, honesty, and truth. 10. Opaitz received numerous honors and awards while on the force, including the Medal of Valor, and twice, the Legendary Service Award, Officer Opaitz also received training and numerous certifications while with the LPD. He attained the rank of Corporal before retirement. u. Defendants’ Background: Defendants respectively own, operate, and manage a business know as KCBD-TV News Channel 11 (“KCBD”) in Lubbock, Lubbock County, Texas. This business is a television station, which publishes on many different media, including the Internet and commercial television aired on cable and satellite. Whenever it is said in this Petition that a Defendant did or failed to do a certain thing, it is meant that Defendants and employees of Defendants did or failed to do a certain thing within the context of their employment. However, as to James Clark, he individually committed tortious conduct as shown herein, and for reasons of personal animosity toward police officers in general. ua Defendants have been sued various times for publishing false statements that were libelous per se as they falsely imputed the commission of crimes. Plaintiff brings this fact to light to evidence a propensity and conscious intent, whether through negligence, or whether through ORIGINAL PETITION - 3 of 25conscious disregard for the rights of others, to commit slander and libel, albeit for sensational headlines, for increased market share and profits. 12, Defendants’ Torts and Invasion of Privacy: In 2009 and 2010, KCBD negligently, and with conscious disregard of the rights the Texas Constitution bestows upon its Citizens, published five different news entries on their website (www.kebd.com), which are the subject of this suit. Additionally, Defendants published via their television broadcast defamatory content about Plaintiff. 121 The TEXAS JOURNALIST SHIELD Law was not applicable at this time. 13. KCBD published on April 24, 2009, an entry titled: “LPD officer on administrative leave.” This entry stated that Opaitz had been on administrative leave for six weeks and the Lubbock Police Department would not confirm the reason why. It further stated the details of the administrative leave, which KCBD obtained via a document titled “Special Order: Administrative Leave.” KCBD further stated that they attempted to question Opaitz by appearing at his residence, but he did not answer the door. Author of entry unnamed. 33a There are a number of reasons why a person could be on administrative leave from their employment. It could be health reasons; it could be personal reasons; it could be that they have been spending time with a loved one on their deathbed. However, KCBD did not eliminate those possibilities; KCBD reported that the Texas Rangers could not confirm or deny that their agency is conducting a criminal investigation on Opaitz. This statement created a false representation regarding Opaitz because it implies that Opaitz has done something wrong. ORIGINAL PETITION - 4 of 2514. On May 10, 2009, KCBD published an entry by James Clark titled: “public records provide no update on suspended police officer.” This entry states that NewsChannel 11 continues to follow the story of a Lubbock police officer placed on administrative leave. aga 14.3 14.4 KCBD makes a false representation in their “sensational” title by referring to Opaitz as a “suspended” police officer, which gives readers the impression that the Lubbock Police Department suspended Opaitz or that Opaitz was being disciplined. That is inherently false. KCBD states that they asked for any police reports in which Opaitz is the “suspect” or a “person of interest.” Even though KCBD stated that police said there were no such reports, just the fact that KCBD even mentions it creates a false context about Opaitz. KCBD was falsely implying that they had reason to believe Opaitz was a “suspect” or “person of interest.” Further, KCBD reported that the Texas Rangers could not confirm or deny that their agency is conducting a criminal investigation on Opaitz. This statement creates a false context regarding Opaitz because it implies to the viewer’s public-mind that Opaitz has done something wrong. Moreover, right below the article is a link for “Lubbock PD Registered Sex Offenders.” The placement of the article at this place on the website supplies further unmistakable innuendo, ic. a suggestive and disparaging HINT as to what kind of person James Clark and KCBD insinuate about Opaitz’s professional reputation, including by sexual corruption. 15. On May 18, 2009, Executive Producer of KCBD, James Clark, sent an email to the Public Information Office, Texas Department of Public Safety, making an open records request for: ORIGINAL PETITION - 5 of 25“redacted copies of an ‘front page’ information pertaining to any reports wherein Darrin Opaitz of Lubbock . . . is the suspect, arrestee, or person of interest. The timeframe should be from January 1st 2009 to the present. I believe these reports are held by the Texas Rangers Lubbock office.” 16. Texas Department of Public Safety responded by email on May 21, 2009, and declined to provide any records to James Clark. The Texas Rangers stated that Clark's request appeared to implicate the individual’s right of privacy, for which such information would be excepted from disclosure pursuant to Tex. Gov't Cove §552.101, as acknowledging the individual rights of privacy. (Office of the Attorney General, Public Information Handbook) 17. Undaunted by direct notice of Constitutional restraint, James Clark responded on May 21, 2009, re-asserting his request for the records on Darrin Opaitz, and applying considerable pressure for the release of this confidential information. A copy of this e-mail is attached hereto as Exhibit A. Upon information and belief, Plaintiff believes KCBD unlawfully learned about the investigation from John Leonard, who was Lubbock City Councilman at that time. 18. On June 1, 2009 at 2:18p.m., the Assistant General Counsel of the Texas Dept. of Public Safety e-mailed James Clark a partial record (2 pages only) pertaining to Darrin Opaitz. 181 The Report of Investigation stated at the top of the page “THIS REPORT IS THE PROPERTY OF TEXAS DPS-TEXAS RANGER DIVISION. NEITHER IT NOR ITS CONTENTS MAY BE DISSEMINATED OUTSIDE THE AGENCY TO WHICH LOANED.” Moreover, everything written under synopsis was labeled “RESTRICTED MATERIAL,” and at the bottom of both pages read “DPS SENSITIVE.” ORIGINAL PETITION - 6 of 2519. _ In true Paparazzi form, despite the order on the report not to disseminate the report or its contents, on June 1, 2009, KCBD published an un-authored entry titled “NewsChannel 11 Investigates: LPD Officer Accused of Sexual Assault,” which disseminated the contents of the report, and KCBD disseminated the report itself when it linked the report to their website as a PDF that people can download. As of the date of this Petition, said link to download is still on the page of this “news” entry and is being unlawfully published daily. 19.4 19.2 19.3 19-4 KCBD refers to the 2 female accusers as “first victim” and “second victim.” KCBD created a false representation by failing to state “alleged” victim, or some other word that would convey that these statements were alleged or claimed, but not yet confirmed as true in any regard. KCBD refers to the 2 female accusers as “victims” instead of as “accusers” or “claimants.” KCBD made a false representation by calling them “victims” because that implies that their statements were already taken as true, and that their statements were already more than just accusations or claims. KCBD states: “[The investigation report] names Lubbock Police Corporal Darrin Opaitz as the suspect.” The report never states that Darrin Opaitz, was a “suspect”—to the contrary, the report states that someone “claimed to have been sexually assaulted by Darrin Opaitz.” There is a difference, and by mis-stating that, KCBD created a false representation that the Texas Rangers actually considered Darrin Opaitz a suspect. KCBD refers to “injuries and sexual assault,” and created a false representation by failing to say “alleged” injuries and “alleged” sexual assault. ORIGINAL PETITION - 7 of 2519.5 KCBD mentioned the name of one of the female accusers as “Cindy.” Opaitz’s ex-wife's name is Cindy; thus, this created a false representation to members of the community that Opaitz had sexually assaulted his ex- wife. 19.6 KCBD states: “Lubbock Police tell us they can't comment on a Texas Rangers investigation and by law they can't comment on a possible internal affairs investigation either.” 19.7 KCBD states that Opaitz could be “charged or cleared once the investigation is over.” ‘This statement implies guilt, which is inherently false. 198 Above all, the report should not have been disseminated to the public at all, based on the specific language on the report that said: “THIS REPORT IS THE PROPERTY OF TEXAS DPS-TEXAS RANGER DIVISION. NEITHER IT NOR ITS CONTENTS MAY BE. DISSEMINATED OUTSIDE THE AGENCY TO WHICH LOANED.” 20. The next day, June 2, 2009, KCBD published again, an un-authored entry titled: “Update on Officer Opaitz case.” The update just provided a summary of everything they had already posted about Opaitz. Moreover, they quoted Opaitz’s lawyer, Travis Ware, stating, “It’s inappropriate for either Darrin or myself to comment under ethical principles.” ‘Taken within the meaning of the context already provided, the objective fact KCBD intended to be communicated was: Opaitz must be defending criminal charges, as neither he nor his lawyer will state otherwise. 20.1 Atthis point in time, the Texas Rangers, the Lubbock Police Department, Opaitz himself, and Opaitz’s attorney all refused to talk about this subject matter, as ORIGINAL PETITION - 8 of 25they should, considering this was actually an internal affairs investigation. For policy reasons, the details of an internal affairs investigation are never supposed to be disclosed to the public. That explanatory context was not provided by Clark, or by KCBD, as neither fairness nor accuracy of fact was involved. “Dirty laundry” headlines sell, and who cares if in the process of manufacturing headline news, Opaitz’s personal reputation in the community and professional character are sacrificed for the greed of a multibillion-dollar news-making machine. 21. On May 27, 2010, KCBD published an entry by James Clark titled: “After Investigation, paid leave, Opaitz not with Lubbock Police.” In this entry, James Clark summarized, once again, that Opaitz has been accused of sexual assault, that the ‘Texas Rangers took witness statements, and that no charges were filed, but again the context is not fair, nor balanced and libelously misleading as to the reason for Opaitz’s leaving the police force. aa 22 To summarize, from June 1, 2009 to May 27, 2010—ALMOST A WHOLE YEAR—KCBD left the Lubbock community wondering whether charges were being filed against Officer Opaitz. For almost 365 days, the poison pen of KCBD spotlights, ridicules, and imputes crime to Opaitz such that he was shunned by the community, his colleagues, and peers while KCBD and James Clark crafted their unlawful series of articles that have now culminated in the untruthful implied contextual fact that Opaitz’s leaving the police force was due to a “deal” or “bargain” as indeed, why else would Opaitz “not be with the Lubbock Police?” The statement “No charges were filed” came 1 year too late; Officer Opaitz’s reputation was already ruined. The contextual fact that Officer + ref: Hear the lyrics to Don Henley’s song “Dirty Laundry” ORIGINAL PETITION - 9 of 25Opaitz had to retire early because he had lost the inherent trust of his fellow officers was not relevant to “dirty laundry,” BUT to spin that Opaitz “is no longer with the police” conveys the “leaving” in and of itself is a punishment for the crime and guilt (i.e. charges) imposed solely by KCBD. 21.3 Further, KCBD stated that Opaitz had been on leave starting May s, 2009. This statement is false because he had been on leave since March 5)2009. 21.4 KCBD stated in one paragraph that: “KCBD News Channel 11 noticed that it was more than a year that Opaitz was placed on paid leave.” In the next paragraph: “Police say Opaitz retired from the department on January 29th 2010. He had been on leave starting May sth 2009 so that means he was on paid leave for about nine months.” Both statements are false. 215 The headline “alone” gives a false representation. The headline “After Investigation, paid leave, Opaitz not with Lubbock Police.” Linking those three phrases together creates a false representation because it implies that his retirement had something to do with the investigation or the paid leave. In actuality, his retirement was due to the unlawful publicity of these private facts, which ruined his reputation and his ability to remain on the force as a police officer. Additionally, to write “Opaitz not with Lubbock Police” implies that he was fired or asked to resign, when in reality, he retired on good terms. 2. The investigation facts of the confidential internal affairs investigation were private as to Opaitz. Such private facts were constitutionally protected, particularly as such confidential internal affairs investigation derived from an initial highly suspicious ORIGINAL PETITION - 10 of 25complaint lodged against Opaitz concerning alleged off-duty conduct. No charge of wrongdoing has ever been brought from such allegations. 23, Officer Opaitz retired in good standing from the Lubbock Police Department in January of 2010. 24, Opaitz has moved out of state, due to the injuries KCBD caused to his reputation and ability to find employment or socialize in the Lubbock community. 25. Plaintiff's counsel sent a Notice of Claims letter to Defendant, Raycom Media, Inc. on November 16, 2010. Said letter is attached hereto and incorporated by reference as Exhibit B. Defendants have refused to take down their defamatory published entries, which shows their intent to continue to assert as true, that which is false, and that which is an invasion of privacy which unlawful publication is a continuing tort. See Exhibit C for Raycom Media, Inc.’s arrogant response to Plaintiff's Notice of Claims letter. V. Causes of Action A. — Defamation by Libel 26. Plaintiff incorporates by reference the factual allegations contained in paragraphs 2 through 25. Defendants’ actions constituted Defamation by libel, pursuant to the Tex. Civ, Prac. & REM. CODE § 73.001, et. seq., by virtue of the following unlawful conduct and unlawful Constitutional trespass of liberty that lowered Opaitz’s reputation in the community, or deterred others from associating with him or becoming otherwise involved with him. ORIGINAL PETITION - 11 of 2527. Defendants published defamatory “statements of fact” about Plaintiff. KCBD published five (5) different entries, which were, and still are, communicated to the public at large, via KCBD’s website. 27. 27.2 273 The statements in these entries on KCBD’s website are considered “statements of fact” because they expressly or impliedly assert facts that are “objectively verifiable.” For example, one could objectively verify whether Opaitz was “suspended” or not, from the Lubbock Police Department; one could objectively verify whether he was technically considered a “suspect” or not, of a sexual assault; and one could objectively verify whether the two women accusers were considered ‘victims” or “alleged” victims, claimants, or accusers. A reasonable fact-finder would be able to conclude that the statements KCBD was making about Opaitz implied an assertion of fact. The statement involved a private issue, not a public issue (a public issue is a matter of political, social, or other concern to the community). An individual making a claim or accusation against another individual, where it is unknown if the claim or accusation has any merit or truth, is certainly a matter of private concern until criminal charges or arrests actually take place, 28. Defendants’ statements identified Plaintiff directly by name in its publications. 29. Defendants made statements and representations that constituted libel per se and should be considered defamatory as a matter of law, because they were written statements that were unambiguously false and caused injury to Plaintiff's personal reputation. Some of the specific false statements and representations are referred to in the Factual Background section of this Petition. ‘ORIGINAL PETITION - 12 of 2529. 29.2 As for statutory libel, Defendants’ statements injured Plaintiff's reputation and thus exposed Plaintiff to public hatred, contempt or ridicule, and personal and financial injury, such that Plaintiff had to move to a different state. Defendants’ statements impeached Plaintiff's honesty, integrity, virtue, and personal reputation and injured his professional and professional reputation through imputations of moral and character unfitness due to criminal misconduct. As for common-law defamatory statements, Defendants’ statements injured Plaintiff's occupation, imputed crime, and imputed sexual misconduct—all of which are libel per se in the common law. 30. In the alternative, if the Court finds the statements to be ambiguous, Plaintiff asserts that Defendants’ statements should be considered Libel per quod, such that, Plaintiff will be able to introduce extrinsic evidence to explain defamation by innuendo and implication. 30.1 The test for actionable defamation by innuendo is not how the plaintiff might construe the statement, but how the average reasonable person or the general public would construe the statement. In the case at bar, the public construed that Plaintiff Opaitz sexually assaulted two women— considering Defendants’ choice of words, choice of headlines, article contents, and the fact that they were publicizing this in the first place. The general public is used to hearing in the news about criminal charges, convictions, and other judicial proceedings; so to bring this subject matter to the public’s attention, they automatically assume guilt or that the criminal charges are forthcoming—after all, why would KCBD report on this if they didn’t think it really happened? Who would dare taint someone’s reputation by repeating allegations that could be unsubstantiated, motivated by revenge, or other gain, or just plain lies? ORIGINAL PETITION - 13 of 2530.2 Moreover, Plaintiff was defamed by implication because Defendants conveyed a false and defamatory impression by omitting material facts or juxtaposing facts. When a defendant juxtaposes a series of facts so as to imply a defamatory connection between them, or creates a defamatory implication by omitting facts, the defendant can be liable for the defamatory implication even if all the individual statements in the publication, when considered in isolation, are literally true or not defamatory. 31. Defendants’ statements that defamed Plaintiff were false. 32, Damages: Damages resulting from libel or slander are not capable of being measured by any standard, as the amount awarded is at the jury's discretion. 324 Plaintiff suffered pecuniary and personal injury that was foreseeable, direct and the proximate result of the defaming statements made by KCBD Channel 11. 32.2 Plaintiff was essentially forced to retire and move out-of-state, due to KCBD's publicity and false representations that caused Plaintiff's colleagues and the people of Lubbock not to trust Plaintiff anymore. As one example, during the graduation of Opaitz’s son in May 2009, his parents, friends and relatives heard the news reports at a time he had to appear in public graduation ceremony and related events with his son. His son had to be shielded from learning about the incident. This broadcast, at this time, caused extreme anguish, private and public humiliation, and extreme anger at being helpless to respond or explain the situation to other police officers, family and friends. 323 Defendants’ defamatory statements both severely and irreparably damaged Plaintiff's business reputation and Plaintiff's personal reputation, ORIGINAL PETITION - 14 of 25especially among those who had social interaction with him, including through his children. 32.4 Moreover, Defendants’ defamation by libel is an ongoing and continuing tort, due to the fact that the defamatory content is still on KCBD’s website. Defendants were asked to take it down, but have refused. 32.5 Defendants defamatory publications are without right, privilege or justification. 33. Exemplary damages: Since Opaitz is private individual he contends by the facts shown herein that KCBD and Clark exhibited in their attitude toward the truth of what they reported ill will or utter recklessness That is, the articles and statements set forth herein were published with knowledge that they were false, or with reckless disregard of whether the article or statements therein were false or not. As a news media organization, KCBD knew, or in the reasonable exercise of publishing standards common to the industry, should have known that its actions carried an extreme degree of risk of probability and magnitude or potential of harming Opaitz. In the alternative, with actual subjective awareness of the risks involved KCBD and Clark nevertheless proceeded with conscious indifference to the rights, safety or welfare of Opaitz. Civ. PRAC. & REM. CODE §41.00(7) B. _ Invasion of Privacy by Public Disclosure of Private Facts 34. Plaintiff incorporates by reference the factual allegations contained in paragraphs 2 through 25. Plaintiff suffered an Invasion of Privacy by Public Disclosure of Private Facts, by virtue of the following: ORIGINAL PETITION - 15 of 2535. Defendant publicized information about Plaintiff's private life. The information was communicated to the public at large, via KCBD’s website. KCBD wrote not less than five (s) different entries pertaining to his private life. 35.1 The entries pertained to Opaitz’s private life because they were NOT. matters already known, NOT matters of public record, and NOT matters in public view. 35.2. The 2-page report that James Clark received from DPS, pursuant to an open records request, stated that the report and the contents of the report were not to be disseminated. 353 Moreover, the Texas Rangers were asked to look at this by the Lubbock Pe ¢ Department, as an internal affairs investigation. These types of investigations are considered “Information Excepted from Required Disclosure” of the Open Records Act. See Tex. Gov’? Cope § 552.108, in pertinent part: {a) Information held by a law enforcement agency or prosecutor that deals with the detection, investigation, or prosecution of crime is excepted from the requirements of Section 552.021 if: (1) release of the information would interfere with the detection, prosecution of crime; Westigation, or (2) it is information that deals with the detection, investigation, or prosecution of crime only in relation to an investigation that did not result in conviction or deferred adjudication; (b) An internal record or notation of a law enforcement agency or prosecutor that is maintained for internal use in matters relating to law enforcement or prosecution is, excepted from the requirements of Section 552.021 if: (1) release of the internal record or notation would interfere with law enforcement or prosecution; (2) the internal record or notation relates to law enforcement only in relation to an investigation that did not result in conviction or deferred adjudication; ORIGINAL PETITION - 16 of 2535.4 Furthermore, this information, as it pertained to Opaitz’s personnel file, should have been excepted from required disclosure of the Open Records Act, pursuant to Tex. Gov't Code § 552.102. It states, in pertinent part: (a) Information is excepted from the requirements of Section 552.021 if it is information in a personnel file, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy. 355 Finally, this information should have been excepted from required disclosure of the Open Records Act, pursuant to Tex. Gov't Code § 552.101, the broadest exception of them all, which states, in pertinent part: | Information is excepted from the requirements of Section 552.021 ifit is information | considered to be confidential by law, either constitutional, statutory, or by judicial decision. 36. The publicity that Defendants gave to this report, which was not even supposed to be disseminated, is highly offensive to a reasonable person of ordinary sensibilities. Being accused of sexual assault when you believe it never occurred would be highly embarrassing and offensive to a reasonable person. Moreover, a reasonable person would be highly offended if, after being falsely accused of a crime, the media station reported it as if it was true and newsworthy. It was being investigated internally and no charges were ever brought because the people investigating did not want to taint the good reputation of an officer over a mere accusation. ORIGINAL PETITION - 17 of 2537 The matter publi ‘ized was not of legitimate public concern. Whether information is of legitimate public concern depends on the facts of each case, considering both the nature of the information and the public’s interest in its disclosure. 37a 37.2 Crimes, prosecutions, and related judicial proceedings are matters of legitimate public concern as a matter of law. This was NOT a crime, prosecution, or related JUDICIAL proceeding—this was merely an accusation; thus, a claim by an ALLEGED victim. Examples from case law of legitimate public conce! A newscast about a high-school band director who secretly videotaped female students changing clothes for band practice, because the district attorney was conducting a criminal investigation. Doe v. Mobile Video Tapes, Inc., 43 $.W.3d 40, 59 (Tex. App.—Corpus Christi 2001, no pet.) A newspaper article that revealed the details of a violent crime orchestrated by the victim’s former lover, because those details had already been revealed in open judicial proceedings. Wavell v. Caller-Times Publishing Company, 809 8.W.2d , 636 (Tex. App—Corpus Christi 1991, writ. denied), Thus, if Opaitz had been arrested, charged, indicted, or any formal proceeding, then it might have been a legitimate public concem. But this was an internal affairs investigation, in which Opaitz was placed on paid administrative leave. No formal charges had been brought, and no charges were ever brought. If every accusation, however real or however fake, were a legitimate public concern, such that the news media should report it, then people could just accuse their enemies or their competitors of anything in hopes that the news media would report it. ORIGINAL PETITION - 18 of 2538. Plaintiff suffered injuries as a result of the defendant's disclosure. 381 38.2 383 38.4 The purpose of Invasion of Privacy by Public Disclosure of Private Facts is to protect an individual, who has a right to be free from public disclosure of embarrassing private facts about himself or herself, and against unwarranted publication of those facts. Itis not concerned with the identity of the party making the disclosure, or his or her sources, but merely with whether the information disclosed is both private and intimate or embarrassing, and also not of public concern. The information disclosed must be confidential, in the sense that it was previously secret and that disclosure would cause harm. ‘Thus, an action lies to recover damages for the invasion of a person's right of privacy by the wrongful publicizing of his or her private affairs and activities that are outside the realm of legitimate public concern. Truth is not a defense to such an action because falsity is not an element. C. Declaratory Judgment - Invasion of Privacy 39. Plaintiff incorporates by reference the factual allegations contained in paragraphs 2 through 25. 40. The purpose of the Texas UNIFORM DECLARATORY JUDGMENTS ACT is to settle and to afford relief from uncertainty and insecurity with respect to rights, status, and other legal relations; and it is to be liberally construed and administered. Tex. Civ. PRAC. & REM. CODE §37.002(b) A court of record within its jurisdiction has power to declare rights, status, and other legal relations whether or not further relief is or could be claimed. Tex. Civ. PRAC. & REM. CODE §37.003(a) ORIGINAL PETITION - 19 of 2541. Pursuant to the TEXAS UNIFORM DECLARATORY JUDGMENTS AcT (TUDJA), TEX. Civ. PRAC. & REM. CODE § 37.001 et seq., Plaintiffs seek a declaratory judgment that: 411 Defendants invaded or trespassed upon Plaintiffs’ constitutional right to privacy, under the Texas Constitution, by reporting about confidential information, which they had no right to report on. 42. In this regard, Opaitz’s constitutional right to privacy trumps Channel 11’s claims to report news, as the information Chanel sought to be made public was not public information and was published in an untrue and libelous context where sensationalism and not journalism was the purpose. 43 Also, such information and the manner in which it was reported, was highly offensive and outrageous in that the reporting unlawfully and unconstitutionally invaded the mandated protected zone of privacy. 44. This invasion of privacy has Texas Supreme Court and U.S. Supreme Court significance, if a police officer's off duty conduct, never resulting in a criminal charge, can subject him or her to continuing and unrelenting public vilification under the particular facts of this case. Such invasion and libel adversely impacts the morale of serving Lubbock Police Officers, including whether in the future any police officers will cooperate with any internal affairs investigation if they believe such information as is given is going to be made public. 44.1 The entries pertained to Opaitz’s private life because they were NOT matters already known, NOT matters of public record, and NOT matters in public view. ORIGINAL PETITION - 20 of 2544.2 Moreover, the Texas Rangers were asked to look at this by the Lubbock Police Department, as an internal affairs investigation. These types of investigations are considered “Information Excepted from Required Disclosure” of the Open Records Act. See Tex. Gov't Code § 552.108, in pertinent part: {a) Information held by a law enforcement agency or prosecutor that deals with the detection, investigation, or prosecution of crime is excepted from the requirements of Section 552.021 if: | | (2) release of the information would interfere with the detection, prosecution of crime; Westigation, or (2) itis information that deals with the detection, investigation, or prosecution of crime only in relation to an investigation that did not result in conviction or deferred adjudication; (b) An internal record or notation of a law enforcement agency or prosecutor that is maintained for internal use in matters relating to law enforcement or prosecution is excepted from the requirements of Section 552.021 if: | (1) release of the internal record or notation would interfere with law enforcement or | prosecution; (2) the internal record or notation relates to law enforcement only in relation to an investigation that did not result in conviction or deferred adjudication; 443 Furthermore, this information, as it pertained to Opaitz’s personnel file, should have been excepted from required disclosure of the Open Records Act, pursuant to Tex. Gov't Code § 552.102. It states, in pertinent part: (a) Information is excepted from the requirements of Section 552.021 if itis information in a personnel file, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy. ORIGINAL PETITION - 21 of 25M4 This information should have been excepted from required disclosure of the Open Records Act, pursuant to Tex. Gov't Code § 552.101, the broadest exception of them all, which states, in pertinent part: Information is excepted from the requirements of Section 552.021 if itis information considered to be confidential by law, either constitutional, statutory, or by judicial decision. 445 Furthermore, even if KCBD was unaware of the above-referenced law, the 2-page report that James Clark received from DPS, pursuant to an open records request, stated that the report and the contents of the report were not to be disseminated. ‘The fact that KCBD posted this report and wrote about it—despite that it said it was not to be disseminated, and that it was DPS Sensitive and Restricted Material—shows a complete disregard to Opaitz’s privacy. That shows an intentional tort and that KCBD acted with malice. VL_Damages 45. Plaintiff incorporates by reference the factual allegations contained in the preceding paragraphs. 46. Asa result of Defendant's defamation, Plaintiff has suffered actual general and special damages and is asking for compensation in monetary damages in an amount not less than sixteen (16) million dollars. Because the publications were defamatory per se, the existence of the following general damages is presumed as a matter of law. 46.1 General Damages: As a direct and proximate result of Defendants’ torts, Plaintiff has suffered injuries to his character, personal and business reputation, mental anguish as they necessarily and directly result from the defamation and without proof of occurrence, and do not ORIGINAL PETITION - 22 of 25need to be specifically pled or proven. That is, it is axiomatic that once a reputation is destroyed how does one restore it, or can one do so? 46.2. Opaitz has suffered past, present, and future mental anguish in the form of untenable extreme intrusions from public and private humiliation, emotional turmoil in personal relationships, sleeplessness, and grief that intrudes into his daily life. As one example, Opaitz’s wife’s ex-husband is attempting to use the allegations asserted and kept in place by KCBD as grounds for suing for custody of their children. Therefore, the untruths are being re-published by others, as if they were true. The mental and emotional pain and suffering are extreme in that they combine as grief, severe disappointment, indignation, wounded pride, shame and humiliation that will continue in the future as the libel is unabated. 463 Therefore, the injury to Opaitz’s reputation, both in a business and personal context, was so severe that Plaintiff felt compelled to move from Lubbock and start a new life in a different state where no one would know of this false accusation and the unlawful publicity that turned the whole city against him. Plaintiff asserts that Defendants actions constituted libel per se, and therefore, general damages are presumed. 46.2 Special Damages: As a direct and proximate result of Defendants torts, Plaintiff has suffered pecuniary loss in the form of lost wages, lost income, out-of-pocket moving expenses, and loss of earning capacity, Specifically as to lost wages and income, Plaintiff lost the opportunity to work at: + Lake Alan Henry on Spring Break, Labor Day, Memorial Day, and ‘two (2) other special events—a $3,000.00 loss; + University Medical Center ER Security for seven (7) months—a $11,848.00 loss; + Main Event Security for seven (7) months—a $1,750.00 loss; ORIGINAL PETITION - 23 of 25* Ashton Point Apartments for seven (7) months—a $9,400.00 loss; + South Plains Fair—a $3,000.00 loss; * City Overtime Events, such as LISD games and City Accident Investigations—a $2,000.00 loss. 47- As a result of the egregious and malicious nature of Defendant's conduct, Plaintiff is also entitled and now seeks to recover exemplary damages in an amount not less than the maximum amount permitted by law. 48. Plaintiff seeks to recover pre- and post-judgment interest, at the statutory rate or at such other rate asis set by this Court. 49. Plaintiff seeks to recover costs of Court. 50. Plaintiff seeks to recover reasonable and necessary attorney's fees as are equitable and just pursuant to Tex. Civ. PRAC. & REM. CODE § 37.009. VII. Conditions Precedent 51. Plaintiff incorporates by reference the factual allegations contained in the preceding paragraphs. All conditions precedent to recover on each of the causes of action alleged have occurred. VII. Demand for Jury Trial 52. Plaintiff hereby demands a jury trial, and tenders the requisite fee. IX. Rule 194 Request for Disclosure 53 Plaintiff hereby requests Disclosure pursuant to Rule 194 of the Texas Rules of Civil Procedure. Defendants’ Response to Plaintiff's Request for Disclosure is to be produced to Plaintiff's counsel fifty (50) days from the date of service of this Original Petition. ORIGINAL PETITION - 24 of 25X. PRAYER WHEREFORE, PREMISES CONSIDERED, Plaintiff prays that Defendants be cited to appear and answer, and Plaintiff further prays that upon final hearing the following be entered: 1. Judgment against Defendants, jointly and severally, for actual damages sustained by Plaintiff, in the amount of 16 million dollars or in an amount to found and awarded by the jury, as well as all special damages as shown at time of trial. 2. Judgment against Defendants, jointly and severally, for exemplary damages in an amount to be determined by the trier of fact; 3. Judgment for Plaintiff to recover his reasonable and necessary attomeys' fees for bringing this case to trial and judgment, as well as a conditional award in the event of an appeal; 4. Judgment for both pre-judgment interest and post-judgment interest at the maximum interest rate allowed by law; 5. Judgment for cost of Court; and 6. Judgment for such other and further relief to which Plaintiff may be justly entitled. Respectfully submitted, COPY By: Lamar D. Treadwell, SBN: 20205000 551 West Cordova Rd., Suite 720 Santa Fe, New Mexico 87505 Tel. (505) 660-0602 Fax. (505) 757-8519 ATTORNEY FOR PLAINTIFF ORIGINAL PETITION - 25 of 25