Churchfield v. Jehovah's Witnesses — Court Documents (2012)
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Court Documents Churchfield vs Jehovah's Witnesses
Secrets of Pedophilia in an American Religion
Jehovah’s Witnesses in Crisis
BARBARA ANDERSON
Court Documents
Churchfield
vs
Jehovah’s Witnesses CONTENTS
CASE # CI12898 THIRD JUDICIAL DISTRICT COURT OF THE STATE OF NEVADA FOR THE COUNTY OF LYON Filed: December 5, 1997
RICHARD CHURCHFIELD and LEZLY CHURCHFIELD, husband and wife; And LEZLY CHURCHFIELD as Guardian Ad Litem for their minor child, TINA L. CHURCHFIELD
DANIEL STEVEN FITZWATER and; LYNNE FITZWATER; YERINGTON KINGDOM HALL OF JEHOVAH'S WITNESSES, an unknown entity; WATCHTOWER BIBLE AND TRACT SOCIETY OF NEW YORK, INC., a new York corporation; and DOES I through X, inclusive. Defendants.
AMENDED COMPLAINT, Filed 12/5/97 3
ANSWER TO COMPLAINT AND AMENDED COMPLAINT, Filed 2/20/98 10
Deposition of Edward L. Burke, 3/18/99 20
MOTION TO FILE SECOND AMENDED COMPLAINT, Filed 9/7/99 26
STIPULATION AND ORDER FOR DISMISSAL WITH PREJUDICE,
Filed 1/26/00 36 FILE
97 DEC-5 PM 4:09
MARIAN PINKERTON
LYON COUNTY CLERK
Larry Thomas
DEPUTY
IN THE THIRD JUDICIAL DISTRICT COURT OF THE STATE OF NEVADA IN AND FOR THE COUNTY OF LYON
RICHARD CHURCHFIELD and LEZLY CHURCHFIELD, husband and wife; and LEZLY CHURCHFIELD as Guardian Ad Litem for their minor child, TINA L. CHURCHFIELD,
Plaintiffs
AMENDED COMPLAINT
DANIEL STEVEN FITZWATER and; LYNNE FITZWATER; YERINGTON KINGDOM HALL OF JEHOVAH'S WITNESSES, an unknown entity; WATCHTOWER BIBLE AND TRACT SOCIETY OF NEW YORK, INC., a New York corporation; and DOES I through X, inclusive,
Defendants.
COMES NOW, the above-named Plaintiffs, by and through their undersigned counsel, and by way of Amended Complaint against the above-named Defendants, aver and allege as follows:
FIFTH CAUSE OF ACTION (Negligence: Kingdom Hall and Watchtower)
I.
That Plaintiffs incorporate herein their First, Second, and Third Cause of Action of the original Complaint as if set forth in full and at length herein.
II.
The Plaintiffs are informed and believe and thereupon allege that Defendant, YERINGTON KINGDOM HALL OF JEHOVAH'S WITNESSES (hereinafter "KINGDOM HALL"), is an unknown entity and is located in Yerington, Nevada.
III.
The Plaintiffs are informed and believe and thereupon allege that Defendant, WATCHTOWER BIBLE AND TRACT SOCIETY OF NEW YORK, INC. (hereinafter "WATCHTOWER"), is a New York corporation and is the general governing body of all Kingdom Hall of Jehovah's Witnesses, including the Yerington Kingdom Hall.
IV.
v.
At all times alleged herein, the Defendants, and each of them, were acting as principals, agents or representatives, each for the other, and acting within the scope of such agency relationship so that the tortious conduct of each Defendant is imputed by law to every other Defendant.
That Defendants, KINGDOM HALL and WATCHTOWER had a general duty to conduct a reasonable background check on any potential Elder before appointing that Elder and entrusting him to lead a congregation.
VI.
That Defendant DANIEL STEVEN FITZWATER (hereinafter FITZWATER) had a prior history of sexual misconduct, which was known, or should have been known, by the Defendants, KINGDOM HALL and WATCHTOWER.
VII.
That the WATCHTOWER approved the appointment of FITZWATER as an Elder in the Yerington Kingdom Hall, in approximately 1990.
VIII.
That Elders are responsible for the care, supervision and spiritual guidance of the congregation; that one of the qualifications to be an Elder is that one must be beyond reproach, or free from any accusation; that based on the Elder's position, members are taught, or trained, to submit to these Elders and place their trust in these men and their teachings.
IX.
That at the time of FITZWATER's sexual lewdness and molestation of the Plaintiff TINA L. CHURCHFIELD, FITZWATER was an Elder in the Yerington Kingdom Hall.
x.
That had Defendants, KINGDOM HALL and WATCHTOWER, exercised reasonable care in conducting any background check on Defendant FITZWATER, Defendants KINGDOM HALL and WATCHTOWER should not have appointed said Defendant Fitzwater as an Elder.
XI.
That by the negligent appointment/hiring, supervision and retention of Defendant FITZWATER as an Elder, it was foreseeable that Plaintiffs would incur the damages alleged herein.
XII.
That as a direct and proximate result of Defendant KINGDOM HALL's and WATCHTOWER's negligent appointment/hiring, supervision and retention of Defendant FITZWATER as an Elder, Plaintiffs incurred the damages as alleged herein.
WHEREFORE, Plaintiffs pray for judgment as hereinafter set forth.
SIXTH CAUSE OF ACTION (Failure to Warn: Kingdom Hall and Watchtower)
I.
Plaintiffs incorporate herein their First, Second, Third, and Fifth Causes of Action as if set forth in full and at length herein.
II.
That Defendants, KINGDOM HALL and WATCHTOWER, knew, or should have known in the exercise of reasonable care, of Defendant FITZWATER's prior acts of sexual misconduct and unfitness for the position for which he was appointed.
III.
IV.
That Plaintiffs and Defendants were in a special relationship and Defendants were impressed with a duty to warn foreseeable victims of the foreseeable harm.
That Defendants, KINGDOM HALL and WATCHTOWER, were negligent in that they failed to warn Plaintiffs, and the congregation, about Defendant FITZWATER and his prior sexual misconduct.
V.
That as a direct and proximate result of the aforesaid negligence of the defendants, and each of them, the Plaintiff, TINA L. CHURCHFIELD, was subjected to various acts of sexual lewdness and molestation by Defendant FITZWATER, as alleged in the Complaint on file herein.
vi.
That as a direct and proximate result of the aforesaid negligence of the defendants, Plaintiffs have sustained damages as alleged in the Complaint on file herein.
WHEREFORE, Plaintiffs pray for judgment as hereinafter set forth.
SEVENTH CAUSE OF ACTION (Breach of Fiduciary Duty: Kingdom Hall Watchtower, and Fitzwater)
I.
That Plaintiffs incorporate herein their First, Second, Third, Fifth, and Sixth Causes of Action as if set forth in full and at length herein.
II.
That Defendants, and each of them, were in a fiduciary relationship with Plaintiffs as Plaintiffs placed and were directed to place a great deal of trust and reliance in said Defendants.
III.
That Defendants, and each of them, owed a fiduciary duty to deal with the utmost good faith and solely for the benefit of Plaintiffs and the congregation.
IV.
That by allowing the Defendant FITZWATER to be placed in this position of trust as an Elder, Defendants breached their duty and created a foreseeable danger to Plaintiffs, and others.
v.
That as a direct and proximate result of this breach of fiduciary duty, Plaintiffs have suffered damages as alleged in the Complaint on file herein.
WHEREFORE, Plaintiffs pray for judgment as hereinafter set forth.
EIGHTH CAUSE OF ACTION (Vicarious Liability: Kingdom Hall and Watchtower)
I.
Plaintiffs incorporate herein their First, Second, Third, Fifth, Sixth, and Seventh Causes of Action as if set forth in full and at length herein.
II.
That the tortious conduct by Defendant, FITZWATER, as alleged in the Complaint on file herein, was done in the course and scope of his agency and/or appointment/employment with Defendants, KINGDOM HALL and WATCHTOWER.
III.
That the Defendants, KINGDOM HALL and WATCHTOWER, are vicariously liable for the torts of their agent/employee, Defendant FITZWATER.
IV.
That in the alternative, Defendant FITZWATER was aided in accomplishing the tortious conduct by the existence of the agency/employment relation, by which case, Defendants KINGDOM HALL and WATCHTOWER are vicariously liable.
V.
That as a direct and proximate result of said agency/employment relation, Plaintiffs suffered damages as alleged in the Complaint on file herein.
///
/// WHEREFORE, Plaintiffs pray for judgment against the Defendants as follows:
A. For Plaintiff TINA L. CHURCHFIELD:
Damages for humiliation, mental anguish and emotional and physical distress and damages to her body in excess of TEN THOUSAND DOLLARS ($10,000).
B. For Plaintiffs RICHARD CHURCHFIELD and LEZLY CHURCHFIELD:
For all costs of treatment, counseling and other related expenses according to proof.
D. For all Plaintiffs:
For loss of Services and enjoyment of Plaintiff TINA L. CHURCHFIELD in excess of TEN THOUSAND DOLLARS ($10,000).
Punitive and exemplary damages in excess of TEN THOUSAND DOLLARS ($10,000) and according to proof.
C. For all Plaintiffs against the Defendant FITZWATER only:
Actual attorney's fees incurred as an item of damages, together with costs of suit.
For such other and further relief as to the Court may seem proper in the premises.
DATED this 24 day of October, 1997.
TERZICH & JACKSON, LTD.
By: MILOS TERZICH, ESQ. 1470 Highway 395 Post Office Box 1210 Gardnerville, NV 89410 (702) 782-2700 IN THE THIRD JUDICIAL DISTRICT COURT OF THE STATE OF NEVADA IN AND FOR THE COUNTY OF LYON
RICHARD CHURCHFIELD and LEZLY CHURCHFIELD,husband and wife;and LEZLY CHURCHFIELD as Guardian ad Litem for their minor child,TINA L. CHURCHFIELD,
Plaintiffs.
DANIEL STEVEN FITZWATER and; LYNNE FITZWATER; YERINGTON KINGDOM HALL OF JEHOVAH's WITNESSES, an unknown entity; WATCHTOWER BIBLE AND TRACT SOCIETY OF NEW YORK, INC., a New York corporation; and DOES I through X, inclusive,
ANSWER TO COMPLAINT AND AMENDED COMPLAINT
Defendants.
COME NOW the WATCHTOWER BIBLE AND TRACT SOCIETY OF NEW YORK, INC. and the ENGLISH CONGREGATION OF JEHOVAH'S WITNESSES, YERINGTON, NEVADA, an unincorporated association improperly named herein as "YERINGTON KINGDOM HALL OF JEHOVAH's WITNESSES, and in answering the FIRST CAUSE OF ACTION of the Complaint on file herein, admit, deny and aver as follows:
1.
Admits the allegations and averments contained in Paragraph I.
11.
Defendants are without knowledge or information sufficient to form a belief as to the truth of the allegations and averments contained in Paragraph II and therefore, deny the same. //// III.
Admit the allegations and averments in Paragraph III.
IV.
Defendants are without knowledge or information sufficient to form a belief as to the truth of the allegations and averments contained in Paragraph IV and therefore, deny the same.
V.
Deny the allegations and averments contained in Paragraph V insofar as said allegations or averments relate to these answering Defendants.
VI.
Defendants are without knowledge or information sufficient to form a belief as to the truth of the allegations and averments contained in Paragraphs VI through XIII, inclusive, and therefore, deny the same.
In answering the SECOND CAUSE OF ACTION of the Complaint on file herein, Defendants admit, deny and aver as follows:
1.
Adopt by reference and make a part hereof each and all of the statements, allegations and averments contained in Paragraphs I through VI, inclusive, of their answer to said First Cause of Action hereinabove.
11.
Defendants are without knowledge or information sufficient to form a belief as to the truth of the allegations and averments contained in Paragraphs II and III of said Second Cause of Action and therefore, deny the same.
In answering the THIRD CAUSE OF ACTION of the Complaint on file herein, Defendants admit, deny and aver as follows:
1.
Adopt by reference and make a part hereof each and all of the statements, allegations and averments contained in Paragraphs I through VI, inclusive, of their answer to said First Cause of Action hereinabove and Paragraphs I and II of their answer to said Second Cause of Action hereinabove.
II.
Defendants are without knowledge or information sufficient to form a belief as to the truth of the allegations and averments contained in Paragraphs II and III of said Third Cause of Action and therefore, deny the same.
In answering the FOURTH CAUSE OF ACTION of the Complaint on file herein, Defendants admit, deny and aver as follows:
Adopt by reference and make a part hereof each and all of the statements, allegations and averments contained in Paragraphs I through VI, inclusive, of their answer to said First Cause of Action hereinabove, Paragraphs I and II of their answer to said Second Cause of Action hereinabove and Paragraphs I and II of their answer to said Third Cause of Action hereinabove.
1.
11.
Defendants are without knowledge or information sufficient to form a belief as to the truth of the allegations and averments contained in Paragraphs II through IV, inclusive, of said Fourth Cause of Action and therefore, deny the same.
In answering the FIFTH CAUSE OF ACTION of the Amended Complaint on file herein, Defendants admit, deny and aver as follows:
1.
Adopt by reference and make a part hereof each and all of the statements, allegations and averments contained in Paragraphs I through VI, inclusive, of their answer to said First Cause of Action hereinabove, Paragraphs I and II of their answer to said Second Cause of Action hereinabove, Paragraphs I and II of their answer to said Third Cause of Action hereinabove and Paragraphs I and II of their answer to said Fourth Cause of Action hereinabove.
11.
Admit that the ENGLISH CONGREGATION OF JEHOVAH's WITNESSES, YERINGTON, NEVADA, is an unincorporated association.
III.
Admit that the WATCHTOWER BIBLE & TRACT SOCIETY OF NEW YORK, INC. is a New York not for profit corporation used by the governing body to facilitate preaching and teaching of Jehovah's Witnesses in the United States. Deny the remaining allegations and averments contained in Paragraph IV of said Fifth Cause of Action insofar as said allegations and averments relate to these answering Defendants.
IV.
Deny the allegations and averments contained in Paragraph V.
Defendants are without knowledge or information sufficient to form a belief as to the truth of the allegations and averments contained in Paragraph VI and therefore, deny the same.
V.
Admit that the appointment of FITZWATER as an Elder was approved. Admit the remaining allegations and averments of Paragraph VII.
VII.
Admit that Elders are responsible for the teaching and shepherding of the congregation and that members are encouraged to place their trust in the spiritual direction and guidance provided by the Elders. Deny the remaining allegations and averments of Paragraph VIII.
VIII.
Defendants are without knowledge or information sufficient to form a belief as to the truth of the allegations and averments contained in Paragraph IX and therefore, deny the same.
IX.
Deny the allegations and averments contained in Paragraphs X through XII, inclusive.
In answering the SIXTH CAUSE OF ACTION of the Amended Complaint on file herein, Defendants admit, deny and aver as follows:
1.
Adopt by reference and make a part hereof each and all of the statements, allegations and averments contained in Paragraphs I through VI, inclusive, of their answer to said First Cause of Action hereinabove, Paragraphs I and II of their answer to said Second Cause of Action hereinabove, Paragraphs I and II of their answer to said Third Cause of Action hereinabove, and Paragraphs I and II of their answer to said Fourth Cause of Action hereinabove and Paragraphs I through X, inclusive, of their answer to said Fifth Cause of Action hereinabove.
11.
Deny the allegations and averments contained in Paragraphs II through IV, inclusive. III.
Deny the allegations and averments contained in Paragraphs V and VI insofar as said allegations and averments refer or pertain to these answering Defendant.
In answering the SEVENTH CAUSE OF ACTION of the Amended Complaint on file herein, Defendants admit, deny and aver as follows:
1.
Adopt by reference and make a part hereof each and all of the statements, allegations and averments contained in Paragraphs I through VI, inclusive, of their answer to said First Cause of Action hereinabove, Paragraphs I and II of their answer to said Second Cause of Action hereinabove, Paragraphs I and II of their answer to said Third Cause of Action hereinabove, and Paragraphs I and II of their answer to said Fourth Cause of Action hereinabove, Paragraphs I through X, inclusive, of their answer to said Fifth Cause of Action hereinabove and Paragraphs I through III, inclusive, of their answer to said Sixth Cause of Action hereinabove.
11.
Deny the allegations and averments contained in Paragraphs II and III insofar as said allegations and averments refer or pertain to these answering Defendants.
III.
Deny the allegations and averments contained in Paragraph IV.
IV.
Deny the allegations and averments contained in Paragraph V insofar as said allegations and averments refer or pertain to these answering Defendants.
In answering the EIGHTH CAUSE OF ACTION of the Amended Complaint on file herein, Defendants admit, deny and aver as follows:
1.
Adopt by reference and make a part hereof each and all of the statements, allegations and averments contained in Paragraphs I through VI, inclusive, of their answer to said First Cause of Action hereinabove, Paragraphs I and II of their answer to said Second Cause of Action hereinabove, Paragraphs I and II of their answer to said Third Cause of Action hereinabove, and Paragraphs I and II of their answer to said Fourth Cause of Action hereinabove, Paragraphs I through X, inclusive, of their answer to said Fifth Cause of Action hereinabove, Paragraphs I through III, inclusive, of their answer to said Sixth Cause of Action hereinabove and Paragraphs I through IV, inclusive, of their answer to said Seventh Cause of Action hereinabove.
11.
Deny the allegations and averments contained in Paragraphs II through V, inclusive.
As and for a FIRST, SEPARATE AND AFFIRMATIVE DEFENSE, Defendants aver as follows:
1.
Said Complaint and Amended Complaint fail to state a claim upon which relief can be granted in favor of Plaintiffs, or any of them, or against these Defendants, or either of them.
As and for a SECOND, SEPARATE AND AFFIRMATIVE DEFENSE, Defendants aver as follows:
1.
Plaintiffs' Complaint and Amended Complaint fail to state a claim against these answering Defendants for punitive and/or exemplary damages.
As and for a THIRD, SEPARATE AND AFFIRMATIVE DEFENSE, Defendants aver as follows:
1.
Plaintiffs' Complaint and Amended Complaint fail to state a claim against these answering Defendants for attorney's fees pursuant to the laws of the State of Nevada.
As and for a FOURTH, SEPARATE AND AFFIRMATIVE DEFENSE, Defendants aver as follows:
1.
These Defendants are informed and believe and upon such information and belief aver that prior to and at or about the time and place mentioned in said Complaint and Amended Complaint, Plaintiffs were negligent in and about the matters referred to in said Complaint and Amended Complaint, which negligence proximately caused and contributed to said incident and any and all injuries or damages allegedly resulting therefrom.
11.
At all times denying that these Defendants, or either of them, were negligent or otherwise at fault with regard to the matters averred to in said Complaint and Amended Complaint, these Defendants aver that the negligence and/or fault of Plaintiffs must be compared to that of these Defendants, if any, in accordance with the terms and provisions of the Nevada Revised Statutes and other applicable laws of the State of Nevada.
III.
At all times denying any negligence, fault or responsibility on their part, these Defendants aver that if they are found to be negligent, at fault or otherwise responsible for Plaintiffs' injuries and damages, if any there were, and without admitting the same, the principles of law and equity relative to comparative negligence require that the relative degrees of negligence of all parties be ascertained so that these Defendants be liable to Plaintiffs, if at all, for no more than an amount equal to their relative degree of fault, negligence or responsibility, if any there is, as compared to the fault, negligence or conduct of all parties to this matter.
As and for a FIFTH, SEPARATE AND AFFIRMATIVE DEFENSE, Defendants aver as follows:
1.
These answering Defendants are informed and believe and thereupon aver that the injuries and damages sustained by the Plaintiffs, if any, were caused by the acts or conduct of third parties who were and are not the agents or employees of these Defendants, nor acting on behalf of these Defendants.
As and for a SIXTH, SEPARATE AND AFFIRMATIVE DEFENSE, Defendants aver as follows:
1.
At all times and places relevant hereto, these Defendants and their agents or employees acted in good faith and without malice toward the Plaintiffs and each of them.
As and for a SEVENTH, SEPARATE AND AFFIRMATIVE DEFENSE, Defendants aver as follows:
1.
Defendants are informed and believe and thereupon aver that Plaintiffs failed to mitigate their losses and damages, if any there were.
As and for an EIGHTH, SEPARATE AND AFFIRMATIVE DEFENSE, Defendants aver as follows:
1.
Pursuant to the terms and provisions of Rule 11 of the Nevada Rules of Civil Procedure, at the time Defendants filed this Answer, all possible affirmative defenses may not have been alleged inasmuch as insufficient facts and other relevant information and documents may not have been available after reasonable inquiry, and therefore, Defendants reserve the right to amend this Answer to allege additional affirmative defenses if subsequent investigation warrants the same.
WHEREFORE, Defendants pray that Plaintiffs take nothing by reason of said Complaint and Amended Complaint and that these Defendants have judgment against Plaintiffs for costs of suit and a reasonable attorney's fee herein.
ERICKSON, THORPE & SWAINSTON, LTD. 99 West Arroyo Street, P.O. Box 3559 Reno, Nevada 89505
By John Alverstin
JOHN A. ABERASTURI Attorneys for Defendants WATCHTOWER BIBLE AND TRACT SOCIETY OF NEW YORK, INC. and the ENGLISH CONGREGATION OF JEHOVAH'S WITNESSES, YERINGTON, NEVADA CERTIFICATE OF SERVICE
Pursuant to NRCP 5(b), I certify that I am an employee of ERICKSON, THORPE & SWAINSTON, LTD. and that on this date I mailed a true copy of the attached document addressed as follows:
Mr. Milos Terzich Attorney at Law P.O.Box 1210 Gardnerville, Nevada 89410
2/18, 1998
Churchfield v. Fitzwater Edward Burke 3/18/99
1 CASE NO. CI 12898
DEPT. NO. I
THIRD JUDICIAL DISTRICT COURT OF THE STATE OF NEVADA
IN AND FOR THE COUNTY OF LYON
RICHARD CHURCHFIELD and LEZLY :
CHURCHFIELD, husband and wife, and :
LEZLY CHURCHFIELD as Guardian Ad :
Litem for their minor child, :
TINA L. CHURCHFIELD, :
Plaintiffs. :
vs. :
DANIEL STEVEN FITZWATER and LYNNE :
FITZWATER; YERINGTON KINGDOM HALL :
OF JEHOVAH'S WITNESSES, an unknown :
entity; WATCHTOWER BIBLE AND TRACT :
SOCIETY OF NEW YORK, INC. :
New York corporation; and DOES I :
through X. inclusive. :
ATTORNEY'S NOTES/CORRECTIONS BY WITNESS
PAGE LINE
RENO, NEVADA; THURSDAY, MARCH 18, 1999; 9:00 A.M. -000-
EDWARD L. BURKE having been duly sworn by the notary public, was examined and testified as follows:
Q Sir, would you state your full name for the record, please.
FOR THE DEFENDANTS:
ERICKSON, THORPE & SWAINSTON Attorneys at Law
By: JOHN ABERASTURI, ESQ.
99 West Arroyo Street
Reno, Nevada AND
Associate General Counsel
MARIO MORENO, ESQ.
Watch Tower Bible and Tract
Patterson, New York
INDEX
EXAMINATION BY:
A My full name is Edward L. Burke.
Mr. Burke, we discussed briefly off the record, but just so we're clear, you're here to give your deposition today in the matter of a lawsuit that's been filed by Mr. Churchfield, who's here, and his family, against the Watch Tower Bible and Tract Society, and the local congregation of Jehovah's Witnesses in Yerington. Is that your understanding?
Q Would you spell your last name for the --
A B-u-r-k-e.
MR. TERZICH: And Mr. Fitzwater. BY MR. ABERASTERI:
A I understand that.
Q I'm sorry. Also named as a defendant are Mr. and Mrs. Fitzwater, who are not represented at this deposition. Is that your understanding?
A Right.
Q Have you ever given a deposition before?
A No.
Q Just a couple of things on the record to make sure that we're of the same mind. First of all, the record itself. The court reporter is taking down
EXHIBITS:
1 - Recommendation for Dan Fitzwater
2 - List of elders
3 - Annual Statement to Trustees
4 - Two-page document
A All right.
clearer. And I will try to let you finish your answers before I start my questions. Okay?
Q The last thing is this is not designed to be an unpleasant process, it's designed to get the information that you have. So if there comes a point in time you need a break, for whatever reason, just let us know, and we'll gladly accommodate you if it's the appropriate time.
A Elko, Nevada, Cittridge Canyon.
Q How do you spell Cittridge?
A C-a-t-t -- C-i-t-t-r-i-d-g-e.
A Five years.
Q And how long have you lived in Elko?
Q How old are you?
A 74.
Q With whom do you live?
A By myself.
Q Are you working or retired?
A Retired.
Q. What did you do for pay before you
A I was a superintendent for Tibbles
MR. TERZICH: Excuse me, what construction?
THE WITNESS: Tibbles.
A Eighteen years.
Q How long were you with Tibbles Construction?
Q And have you been retired for the same five years that you have been living up in Elko?
congregation of Jehovah's Witnesses while you lived in Yerington?
Q Before moving to Elko, where did you live? A Yerington.
Q Did you live in Yerington for 18 years?
A Right.
Q Were you a member of the Yerington
Q How long have you been a Jehovah's Witness?
A About 32, 33 years, something like that.
A At Springfield, Oregon.
Q I've been given to understand that there's
A Yes.
Q During the time that you were an elder did you know Mr. Churchfield, who is here at the table with us?
Q While you lived in Yerington did you ever serve as an elder in that English congregation?
Q About how long did you serve?
actually two congregations in the Yerington area, is that correct, an English congregation and a Spanish language congregation?
Q And obviously you lived in Yerington for a few years after you finished your service, is that correct?
Q I presume from the way you're talking, you were a member of English congregation, correct? A Right
A Right.
A. About ten years.
elder? And approximately when did you become an
A I don't know for sure what the date was.
A Right.
A Yes, I did.
Q Did you also know Daniel Fitzwater?
A Yes.
Q But if we said the early '90s,we would be pretty close to being right?
about the actual date when you stepped down from being an elder?
Q How did you come to know Daniel Fitzwater?
A Through the congregation.
O And again, are you a little bit unsure
Q '82, '83, somewhere in there?
A One of them, yes.
A 1983, I believe, or '2. I don't know which for sure.
Had you known Mr. Fitzwater before he moved into Yerington?
You didn't know him when you were living up in Oregon, for example?
A Not before he originally -- well, I don't know. He moved in and out, so I don't know.
A Pretty close.
Q You only knew him in Yerington?
A In Yerington.
A No.
Q And you said that Mr. Fitzwater moved in and out of town a couple of times, is that correct?
Q Did you meet him through the congregation
A Couple three times, if I remember.
A That I don't recall whether he mailed it to me or whether he brought it back.
Q - is that correct?
But he had been living in town and moved away to Georgia as opposed to through work or --
A Right.
And then later moved back into town, into Yerington?
Q That was a bad question.
Q And during the time that he was coming back into town from Georgia, you were the elder or an
Q Did there come a point in time when
And when you received that letter, is that something that he brought with him when he moved back into town from Georgia?
A Right.
A Yes, the congregation.
Mr. Fitzwater was recommended to be an elder? A. Yes.
O How did that work?
A Well, I had received a letter from where he was down in Georgia recommending him to be an elder, recommending him as an elder here, so I went on that assumption.
elder in the congregation?
Q As a general proposition, I've learned in this case that when a member or one of Jehovah's Witnesses moves, a letter of introduction goes with them to their new congregation, is that right generally?
A I think it has - you have to write the secretary normally.
The letter goes to -- the new congregation gets a letter from the old congregation?
A Right.
Q. And if they've been an elder or a
Q And if they've been an elder or a ministerial servant, there will be a recommendation in that letter generally about whether or not they should be
A Reinstated.
Q - reinstated?
SCRUNCHT
A Right.
And that's what we're talking about with Mr. Fitzwater here?
A Right.
Q. You obviously had known this gentleman
before just because he had been in your congregation?
Pages 7 - 12 SCRUNCH TM
A Right.
service there?
Q Do you know who typed this document?
A No.
A No.
Q Were you aware that he had a problem in
Q Down at the bottom it says Gilbert Hernandez, Jr., and Gilbert Hernandez, Sr. Why would they be mentioned on this form?
the Hazlehurst congregation, but they claimed it was cleared up?
MR. ABERASTERI: There at the bottom where it says ministerial servants in the congregation, and they are identified as the three gentlemen.
A No, I'm not aware of that.
THE WITNESS: Yeah.
Q Did you know that Lynne and Daniel excuse me. Did you know Danielle Fitzwater?
MR. TERZICH: Juan Berumen is crossed out on my --
A Uh-huh.
THE WITNESS: Juan Berumen.
Q Yes?
BY MR. TERZICH:
A Yes.
Q Would Gilbert Hernandez, Jr. and Senior have joined in that representation?
Q Did you know that Lynne - whether or not Lynne or Daniel had emotional problems while in Hazlehurst?
A I don't believe so. I don't remember.
A No.
Q Do you know why their names would be appear on this form?
Q So if I understand you correctly, you didn't even make a telephone call to the Hazlehurst elders or the overseer with regard to Dan Fitzwater before you recommended him?
A No, I don't.
A No.
MR. ABERASTERI: Other than the fact that they are identified as ministerial servants on the form?
Q Were you involved in recommending Lee Le Gros as an elder?
THE WITNESS: That would be the only thing.
A No.
MR. ABERASTERI: Were they ministerial servants at the time?
Q You were not?
MR. TERZICH: Wait just a minute. It's my deposition, if you want to cross-examine him afterward --
A No.
MR. ABERASTERI: You're confusing him, it says why they're there, they're listed as "Names and date of appointment of ministerial servants."
Q You had already stepped down?
MR. TERZICH: You can point that out when you're questioning him. When I question I don't want you interrupting with other questions like you did before, please.
A Uh-huh.
BY MR. TERZICH:
Q That's yes?
Q Did you do an independent investigation of Dan Fitzwater before you recommended him to be an elder?
A Yes.
A Just myself and Frank from when we talked things over. I mean, all the information we had.
Q Do you know Lee Le Gros?
Q What was the information that you had?
A Yes.
A Good recommendation. I mean, we had nothing against him.
Q When did you first meet him?
Q You had a letter from Hazlehurst, Georgia which said he was in good standing?
A I think he was on an official trip down in Yerington, and he come to the congregation, if I remember right.
A Right.
Q That was before he moved to Yerington?
Q And that letter recommended him to be an elder?
A Right.
A Just myself and Frank from when we talked things over. I mean, all the information we had.
A The best of my knowledge he didn't.
Q What was the information that you had?
Q But you just happened to meet him fishing?
A Good recommendation. I mean, we had nothing against him.
A Right.
Q You had a letter from Hazlehurst, Georgia which said he was in good standing?
(Exhibit 2 marked.)
A Right.
BY MR. TERZICH:
Q And that letter recommended him to be an elder,
Q This is a test.
A Just from what his works were in the congregation. What he was, he was recommended a circuit overseer down there in Hazleton, (sic), where he is at in Georgia, and I believe he was a presiding overseer in one of the congregations.
A This is a test?
Q Did you contact the Hazlehurst, Georgia congregation elders or the overseer regarding Dan's congregation elders or the overseer regarding Dan's
Q I'm going to show you Exhibit 2, and ask you to the best way you can if you can write the years
1 I'm sorry if these are a little disjointed.
2 FURTHER EXAMINATION
3 BY MR. ABERASTERI:
One of the last questions you were asked was where you heard about the problems with Mr. Churchfield or excuse me with Mr. Fitzwater, and you told us about reading the stuff in the paper that your friend brings up when he comes up on the truck?
A Yeah.
You also had an occasion where Mr. Churchfield gave you a call?
A Right.
Q And in that call he told you about the allegations against Fitzwater, did he not?
A Briefly. We didn't have too long a
1 made by the circuit overseer relative to his service
2 mindedness and things like that, is that correct?
A Right.
Q And he was unanimously recommended by the elders, which was you and Mr. Cardoza?
A Right, Cardoza and myself.
Q Where is Charlie Kattnig now, as far as you know?
A In a rest home, as far as I know, down in Vegas.
Q How old is he?
A 80-some years old, if he's still alive.
Last I heard, he was. I don't know.
MR. ABERASTERI: Thank you, sir. That's all I have.
MR. TERTICH, Luton
conversation.
Q Just to make that clear.
A Uh-huh.
Q Going back to the time that Mr. Fitzwater was recommended to be an elder, and you’ve seen the document that was presented to you at that time, or in the time that you continued to serve as an elder, did you have any information or any concerns about Mr. Fitzwater with regard to sexual impropriety toward children?
MR. TERZICH: Just a couple more.
FURTHER EXAMINATION
BY MR. TERZICH:
Q You said that standard questions asked of prospective elders, include Dan Fitzwater, is there anything in your past that you should reveal to us that may affect our recommendation or some words to that effect -- how was the question phrased?
A Is there any reason they would be disqualified as a servant, if there was anything.
A No.
Q At the time that Mr. Fitzwater became an elder, was he asked the standard questions about whether or not there was anything in his life or background which would preclude his service as an elder?
A Right. He was asked that question, yes.
Q And that’s relative to the question -
A Yes.
Q - that elders, proposed elders, are asked?
A Right.
Q Data that mention include any allegations
1 That’s asking whether there’s any reason he cannot serve as an elder servant. Just how it was worded, I don’t recall for sure.
Q His answer was there was nothing?
A Yeah, nothing in his past.
Q And you have since learned that that was not true?
A Yes.
Q Going back to Exhibit 1, it says -- where it says, "He served here some years ago," then the third sentence says, "The brothers are familiar with him and have seen his family grow spiritually strong."
Did you feel that he and his family had grown
or problems that they might have had in their past?
A Right.
Q At the time that Mr. Fitzwater was recommended to be an elder you had received contacts from the Georgia congregation, is that correct?
A Yes, we did.
Q And the recommendation that he be allowed to serve as an elder -penalty of perjury that I have read the foregoing pages
A Right.
Q -- is that correct?
24 The document that we have seen, Exhibit 1, 25 which is that recommendation sheet, includes some
14 spiritually strong?
A Well, I can't recall, because he was in and out up until that time. What he was doing right at that time, he seemed to be making good progress.
Q Was Dawn with him at that time?
A Dawn?
Q Dawn.
A No.
Q In 1990?
A No, she was living in Reno here.
Q How about Danielle?
1 typing that was done, the comments of the circuit
2 overseer. If you could look back at Exhibit 1 there.
A Danielle was living with him, yeah.
A Yes, at the top there.
And the first sentence of that document is "Brother Daniel Fitzwater comes to us with fine recommendation from Hazlehurst, Georgia as an elder."
A Right.
Q When he said served here some years ago, he was, in fact, a member of the congregation and served in the congregation prior to this
Q So when you're saying the family grows spiritually strong, who were you referring to?
A Those right there, Danielle and his wife and himself.
MR. TERZICH: That's all I have.
MR. ABERASTERI: Nothing further.
(Deposition was concluded at 10:55 A.M.)
I, EDWARD L. BURKE, hereby declare under
10 1 through 72, that any changes made herein were made
recommendation, is that right?
A As an elder?
Q No, in the congregation?
A Yes, he was in the congregation.
Q Every congregation member, every Jehovah's Witness serves, is that correct?
A Right.
Q That's one of the key tenants of your participation as a Jehovah's Witness?
A Yes.
Q You, in fact, knew Mr. Fitzwater before he moved back to town when he had lived there back in the '70s when you were there?
A When I first met him back then.
Q And then the other comments are comments
Bonanza Reporting - Reno (702) 786-7655
STATE OF NEVADA ) COUNTY OF WASHOE )
I, CAROL HUMMEL, a notary public in and for the County of Washoe, State of Nevada, do hereby certify:
That I was personally present for the purpose of acting as notary public and Certified Court Reporter in the matter entitled herein; that the witness was by me duly sworn;
That said transcript which appears hereinbefore was taken in verbatim stenotype notes by me and thereafter transcribed into typewriting as herein appears to the best of my knowledge, skill and ability and is a true record thereof.
CAROL HUMMEL, CCR #340
STATE OF NEVADA ) COUNTY OF WASHOE )
I, , a notary public in and for the County of , State of , do hereby certify: That on the day of , 19 , before me personally appeared the witness whose deposition appears herein; That the deposition was read to or by the witness; That any changes in form or substance desired by the witness were entered upon the deposition by the witness; That the witness thereupon signed the deposition under penalty of perjury. DATED: At this day of , 19 . NOTARY PUBLIC
OFFICER'S ACTIONSRESIGNINGOFDEPOSITION PURSUANTTONEVADARULESOFCIVILPROCEDURE
DATE LETTER SENT TO WITNESS
4-2-99 AT DIRECTION OF COUNSEL ORIGINAL WAS SENT TO: Mr. Aberasteri WITNESS SIGNED DEPOSITION ORIGINAL SENT TO: OTHER ACTIONS
SCRUNCH™
Pages 73 - 75
FILE
99 SEP - 7 PM 2:32
NIKKI A. BRYAN
LYON COUNTY CLERK
Karry Thomas DEPUTY
IN THE THIRD JUDICIAL DISTRICT COURT OF THE STATE OF NEVADA IN AND FOR THE COUNTY OF LYON
RICHARD CHURCHFIELD and LEZLY CHURCHFIELD, husband and wife, and LEZLY CHURCHFIELD as Guardian Ad Litem for their minor child, TINA L. CHURCHFIELD,
Plaintiffs,
DANIEL STEVEN FITZWATER and LYNNE FITZWATER; YERINGTON KINGDOM HALL OF JEHOVAH'S WITNESSES, an unknown entity; WATCHTOWER BIBLE AND TRACT SOCIETY OF NEW YORK, INC., a New York corporation; and DOES I through X, inclusive,
MOTION TO FILE SECOND AMENDED COMPLAINT
Defendants.
COME NOW the above named Plaintiffs, by and through their undersigned counsel, and hereby move this Court for leave to file their Second Amended Complaint pursuant to NRCP 15 in order to add a Ninth Cause of Action as against the Defendants, YERINGTON KINGDOM HALL OF JEHOVAH'S WITNESSES, an unknown entity, and the WATCHTOWER BIBLE AND TRACT SOCIETY OF NEW YORK, INC., a New York corporation.
This motion is made and based upon the following Points and Authorities, the Affidavit of Plaintiff, RICHARD CHURCHFIELD, which was attached as Exhibit "A" to the First Motion to Amend Complaint filed herein on October 27, 1997, the Plaintiffs' proposed Second Amended Complaint alleging a Ninth Cause of Action to the Complaint, attached hereto as EXHIBIT "A."
DATED this 3d day of September, 1999.
TERZICH & JACKSON, LTD.
By: MILOS TERZICH, ESQ.
1470 Highway 395
Post Office Box 1210
Gardnerville, NV 89410
(775) 782-2700 I.
STATEMENT OF FACTS
Plaintiffs incorporate all of the Statements of Facts set forth in their First Motion to Amend Complaint filed herein on October 27,1997, including the Affidavit of Richard Churchfield.
II. STANDARDS FOR GRANTING A MOTION TO AMEND
Pursuant to the Court's Scheduling Order, the Plaintiffs have until October 1, 1999, within which to file a Motion to amend their Complaint. Nevada Rules of Civil Procedure 15 prescribe the manner in which a complaint may be amended. NRCP 15(a) states as follows:
"(a) Amendments. A party may amend his pleading once as a matter of course at any time before a responsive pleading is served or, if the pleading is one to which no responsive pleading is permitted and the action has not been placed upon the trial calendar, he may so amend it at any time within 20 days after it is served. Otherwise a party may amend his pleading only by leave of court or by written consent of the adverse party; and leave shall be freely given when justice so requires . . ." (Emphasis supplied).
A motion for leave to amend pursuant to NRCP 15(a) is addressed to the sound discretion of the trial court. Connell v. Carl's Air Conditioning, 97 Nev. 436, 439, 634 P.2d 673 (1981). Further, leave to amend should be freely given in the absence of undue delay, bad faith, or dilatory motive. Stephens v. Southern Nev. Music Co., 89 Nev. 104, 105, 507 P.2d 138 (1973).
Plaintiffs seek to add an additional cause of action against the Defendants, Yerington Kingdom Hall of Jehovah's Witnesses and the Watchtower Bible and Tract Society of New York, Inc., which allegations will give rise to punitive damages, based upon information discovered through the numerous depositions that have been taken in this action and other information determined by research.
Plaintiffs' Motion is not unduly delayed, in bad faith, or for dilatory motive, leave to amend should be freely given in this instance.
With respect to the additional cause of action, if the statute of limitations has not run, relation back to the original Complaint is unnecessary. Fernandez v. Kozar, 107 Nev. 446, 814 P.2d 68 (1991). The tortious acts giving rise to Plaintiffs' claims were discovered in June of 1996. There is no statute of limitations problem with Plaintiffs' additional claims and leave to amend would still be appropriate. Further, the Plaintiff, Tina Churchfield, is a minor and the statute of limitations is extended. See NRS 11.250.
Plaintiffs also incorporate all of their Points and Authorities in Plaintiffs' Motion to Amend Complaint filed on October 27,1997,and specific reference is made to paragraph D., pp.14-18 of said Motion to Amend.
DATED this day of September, 1999.
TERZICH & JACKSON, LTD.
By: MILOS TERZICH, ESQ.
1470 Highway 395
Post Office Box 1210
Gardnerville, NV 89410
(775) 782-2700 CERTIFICATE OF MAILING
Pursuant to NRCP 5(b), and that on the 3nd day of September, 1999, I mailed a true and correct copy of the foregoing to:
John A. Aberasturi, Esq.
ERICKSON, THORPE & SWAINSTON, LTD.
Post Office Box 3559
Reno, Nevada 89505
Lynne Fitzwater at her last known address of: 330 West Nye Lane, Apt.17 Carson City, Nevada 89705
Daniel Fitzwater
Back No.: 58445
c/o Northern Nevada Correctional Center
Post Office Box 7000
1721 Snyder Avenue
Carson City, Nevada 89702
DATED this 3nd day of September, 1999.
DEPT.
NO.I
IN THE THIRD JUDICIAL DISTRICT COURT OF THE STATE OF NEVADA IN AND FOR THE COUNTY OF LYON
Plaintiffs,
RICHARD CHURCHFIELD and LEZLY CHURCHFIELD, husband and wife, and LEZLY CHURCHFIELD as Guardian Ad Litem for their minor child, TINA L. CHURCHFIELD,
vs.
SECOND AMENDED COMPLAINT
DANIEL STEVEN FITZWATER and LYNNE FITZWATER; YERINGTON KINGDOM HALL OF JEHOVAH'S WITNESSES, an unknown entity; WATCHTOWER BIBLE AND TRACT SOCIETY OF NEW YORK, INC., a New York corporation; and DOES I through X, inclusive,
Defendants.
COME NOW the above named Plaintiffs, by and through their undersigned counsel, and by way of Second Amended Complaint against the above-named Defendants, aver and allege as follows:
NINTH CAUSE OF ACTION (Kingdom Hall and Watchtower)
I.
That Plaintiffs incorporate herein all of the allegations contained in their First, Second, and Third Causes of Action of the
EXHIBIT "A" original Complaint filed herein on the 8th day of April,1997,and Plaintiffs' Errata to Complaint filed herein on the 23rd day of June,1997,as if set forth in full and at length herein; that Plaintiffs further incorporate herein their Fifth,Sixth,Seventh and Eighth Causes of Action of their Amended Complaint,filed herein on the 5th day of December,1997,as if set forth in full and at length herein.
II.
That Plaintiffs are informed and believe and thereupon allege, that the Defendant, DANIEL STEVEN FITZWATER (hereinafter "Fitzwater"), was publicly reproved for his sexual molestation conduct against his step-daughter, Dawn Schilling Bradley, subsequent to the allegations brought against him by the Plaintiffs, although the reason for his public reproval was not related to the congregation or the Plaintiffs.
III.
That Plaintiffs are informed and believe and thereupon allege, that although the Defendant, FITZWATER, was convicted of two felony counts of Lewdness with a Child, to-wit: Tina L. Churchfield, the Defendant, FITZWATER, was not privately or publicly reproved or disfellowshipped by reason of his conduct with respect to Tina L. Churchfield.
IV.
That Plaintiffs are informed and believe and thereupon allege, that the Defendants, YERINGTON KINGDOM HALL OF JEHOVAH'S WITNESSES (hereinafter "Kingdom Hall"), and WATCHTOWER BIBLE AND TRACT SOCIETY OF NEW YORK, INC. (hereinafter "Watchtower") either had or should have had advance knowledge that the Defendant, FITZWATER, was unfit for the purposes of being an elder and said Defendants recommended and approved the Defendant FITZWATER to become an elder in the KINGDOM HALL congregation with a conscious disregard of the rights or safety of others.
v.
That Plaintiffs are informed and believe and thereupon allege, that the Defendants, KINGDOM HALL and WATCHTOWER ratified the wrongful conduct of the Defendant, FITZWATER, as herein alleged, as against the Plaintiff, Tina L. Churchfield.
vi.
That Plaintiffs are informed and believe and thereupon allege, that the Defendants, KINGDOM HALL and WATCHTOWER, in the conduct alleged in this cause of action, were guilty of oppression, fraud and/or malice, express or implied.
VII.
That Plaintiffs are informed and believe and thereupon allege, that the Defendants KINGDOM HALL and WATCHTOWER are guilty of fraud in that they intentionally conspired to conceal and cover up the Defendant FITZWATER's conduct regarding his sexual misconduct toward minor children, including Defendant FITZWATER's step-daughter, Dawn Schilling Bradley; that the Defendants KINGDOM HALL and WATCHTOWER's conduct in concealing the Defendant FITZWATER's improprieties with minor children was a direct and proximate cause of the injuries sustained by the Plaintiffs, Tina L. Churchfield and her parents.
///
///
/// VIII.
That Plaintiffs are informed and believe and thereupon allege, that the Defendants KINGDOM HALL and WATCHTOWER have in the past, and presently have, established a course of conduct to cover up and conceal sexual molestation and sexual improprieties committed by elders, not only from their own congregation, but also from the general public, to the detriment and injury of the Plaintiffs, other congregation members, and the general public.
IX.
That said Defendants' fraud also consists of their intent to deceive or conceal material facts with respect to the molestation of children or improper acts toward children by elders with the intent to deprive the minor children and their parents of their rights and otherwise injure the sexually molested child and their parents, specifically including the Plaintiffs.
X.
That said Defendants' conduct, as hereinabove alleged and described, was and is in conscious disregard of the probable harm and consequences of their wrongful acts and their willful and deliberate failure to act in order to avoid these consequences, which directly and proximately caused injury to the Plaintiffs.
XI.
That by reason of the aforementioned conduct of the said Defendants, as herein alleged, the Plaintiffs have suffered general damages in excess of TEN THOUSAND DOLLARS ($10,000).
XII.
That by reason of the aforesaid conduct of the said Defendants, as herein alleged, they are liable to pay the Plaintiffs punitive damages in a sum in excess of TEN THOUSAND DOLLARS ($10,000).
WHEREFORE, Plaintiffs pray for judgment against the Defendants, and each of them, as follows:
For all damages, as set forth in the original Complaint and the Amended Complaint.
For additional general damages against all Defendants in excess of TEN THOUSAND DOLLARS ($10,000).
For punitive and exemplary damages in excess of TEN THOUSAND DOLLARS ($10,000), and according to proof.
For attorney's fees and costs of suit.
For such other and further relief as to the Court may seem proper in the premises.
DATED this day of , 1999.
TERZICH & JACKSON, LTD.
By: MILOS TERZICH, ESQ. 1470 Highway 395 Post Office Box 1210 Gardnerville, NV 89410 (775) 782-2700 00 JAN 26 PH 3:25
IN THE THIRD JUDICIAL DISTRICT COURT OF THE STATE OF NEVADA IN AND FOR THE COUNTY OF LYON
RICHARD CHURCHFIELD and LEZLY CHURCHFIELD,husband and wife; and LEZLY CHURCHFIELD as Guardian ad Litem for their minor child,TINA L. CHURCHFIELD,
Plaintiffs.
DANIEL STEVEN FITZWATER and; LYNNE FITZWATER; YERINGTON KINGDOM HALL OF JEHOVAH's WITNESSES, an unknown entity; WATCHTOWER BIBLE AND TRACT SOCIETY OF NEW YORK, INC., a New York corporation; and DOES I through X, inclusive,
Defendants.
STIPULATION AND ORDER FOR DISMISSAL WITH PREJUDICE
The above-entitled action having been fully settled, compromised and satisfied, IT IS HEREBY STIPULATED, by and between the parties hereto, through their respective counsel, that said action shall be dismissed with prejudice, and without costs or fees to any party.
IT IS FURTHER STIPULATED that the jury deposit in the amount of $120.00 posted by ERICKSON, THORPE & SWAINSTON, LTD.
may be returned to that firm by
the Clerk of the Court.
DATED: 1/20 , 1999.
TERZICH & JACKSON
1470 Highway 395, P.O.Box 1210
Gardnerville, Nevada 89410
MILOS TERZICH
Attorney for Plaintiffs
ERICKSON, THORPE & SWAINSTON, LTD.
99 West Arroyo Street, P.O. Box 3559
Reno, Nevada 89505
By Dalian
JOHN A. ABERASTURI
Attorneys for Defendants
IT IS SO ORDERED.
DATED: January 26, 2000
DISTRICT JUDGE