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JUL 2 2 2016 ~~
IN THE SUPREME COURT OF APPEALS OF WEST VI

JANE DOE-1, et al.,

Petitioners,

v. Appeal No. 16-0008

THE CORPORATION OF THE PRESIDENT

OF THE CHURCH OF JESUS CHRIST OF
LATTER-DAY SAINTS, et al.,

Respondents.

BRIEF ON BEHALF OF RESPONDENTS

CHRISTOPHER JENSEN AND SANDRALEE JENSEN

Mark A. Atkinson (WVSB No. 0184)

John J. Polak (WVSB No. 2929)
ATKINSON & POLAK, PLLC
1300 Summers Street, Suite 1300
P.O. Box 549
Charleston, WV 25322
(304) 346-5100

Counsel for Respondents

Christopher Jensen and Sandralee Jensen
 TABLE OF CONTENTS

TABLE OF CONTENTS .......... ... . . ... .. .. .. ....... . ....... .. .... . . . . ... .. .... .. . .....1

TABLE OF AUTHORITIES .............. . .................................. . ... ... .. .. .. .......... .. . . .. iv

I. STATEMENT OF THE CASE ....... ... .. .. ................. ... ...... ... .. .... ..... ...... . : .. . ... ... 1

A. PROCEDURAL HISTORY ....... . ....... ... .... ......... ... ..... .. ..... .... .... ......... ........ 1

B. STATEMENT OF FACTS .... .. .. .. ..... ............. ........... . ...... ..... ............ ........ 4

1. In January 2012, W.T. and J. T. tell their mother that,

five years earlier, Michael Jensen had sexually abused
them. Their disdosure results in the discovery of other
victims and allegations by others. . ............... ....... . .... .. ..... ... . ..... . . . ... . .. .4

2. Michael sexually abused P.C. in April2007, but she did

not disclose the abuse, and there was no reason for the
Jensens to believe she had been sexually abused until she
disclosed the abuse in September 2012. .. . ............. ..... ........... ....... ..... 5

3. The Jensen family continued to participate in the Church

as ordinary members. . ...... ... ..... ............................ . ...... .. . ......... 6

4. Michael sexually abused Z.W. in early 2008. Z.W. allegedly

told his parents, but they did not report the abuse to
authorities. The parents allege that they reported the abuse
to the Jensens and Bishop Fishel. .. .. .. .... . .... . .. .......... .. . . ....... .. . . ... ....... 7

5. The plaintiffs allege that in early 2009, Michael abused

Plaintiff C.H. while babysitting. C.H. says Michael did
not abuse him. In any case, there was no reason for anyone
to suspect C.H. had possibly been abused until after Michael
was convicted. . .. .. ...... .. ....... ..... ........... ..... .... ... ... . . ... .. . .. .. ...... 10

6. It is possible that Michael abused UD-1 's handicapped son,

C.P., in 2009. But no one at the time suspected Michael had
abused C.P., and it is still uncertain whether Michael actUally
abused him. . . .. .. . . . .. .. .. ... .. . . ... .. .. ..... .. ....... . .. . . .... ..... .... ..... ..... . ... ... 11

7. Chris Jensen finds Michael in K.J. 's bedrooin in 2010. .................. ...... 14

8. There was no allegation that Michael abused Plaintiff A.B.

until after Michael was arrested. There is no evidence in
the record any of the alleged coconspirators arranged for
or were even aware of Michael spending time with the

1
 Doe-4 family. . ............................. .. .. .................. .... ........... .. 17

9. The plaintiffs allege that Michael abused M.S. and T.S., the
sons of John and Jane Doe-5, while living with them. This
alleged abuse also did not come to light until after Michael
was arrested. . .... .... ................. .. ......................................... 18

II. SUMMARY OF ARGUMENT ................................................... ...... ...... ...... 20

III. STATEMENT REGARDING ORAL ARGUMENT ...................... ............ ..... .. . 24

IV. ARGUMENT ..... ... ...... ............ .... .................... .... ................................. 24

A. The plaintiffs' interlocutory appeal does not meet the requirements of Rule 54(b) ....... 24

1. This Court reviews de novo whether an interlocutory

appeal meets the requirements of Rule 54(b). . ........ ... ... .... ......... ..... 25

2. The certified orders did not completely dispose

of an independent "claim for relief." ............ .......... . ... .. .......... .. .. 25

a. The plaintiffs' Amended Complaint presents

only a single claim for relief. ......... ... ......... .............................. 25

b. Civil conspiracy is not a "claim for relief." ........ ......................... 29

3. The circuit court's rationale for concluding that there

was "no just reason for delay" was "clearly unreasonable." .............. . 30

B. This Court should exercise its discretion to refuse to consider the appeal. ... ....... .... . 30

C. Any review of the motions in limine should be limited. . ............................... . 33

1. This Court should not review the in limine rulings except to

the extent they impact the outcome of the circuit court's
order granting summary judgment with respect to the
alleged conspiracy. . .... .. ... ...... .. .. .... . .. ..... ........ .............. .... ..... ..... . 33

2. The in limine rulings are subject to review only for abuse

of discretion. . .... .... ........ ... .. ........... .. . ..... . ...... ................. . ... 35

3. The circuit court did not abuse its discretion by excluding

evidence of Michael's misconduct in Provo because it was
too "dissimilar" from the conduct the plaintiffs complain of. . ... .. ... ...... 37

4. The circuit court did not abuse its discretion by excluding

the SBRA. . .. ....... .... .. ........ .... .. .......... ...................... .... .. .. ...... .. 44

11
 5. The circuit court did not abuse its discretion by excluding
evidence of the Juliana Menendez incident. .. .... ............... . . . .. .. . ... . . . . .. .. .. 47

6. The circuit court did not abuse its discretion in excluding

the plaintiffs' scurrilous and offensive speculation about
the Jensens' daughter, R.J., showing "signs of abuse." ....................... .48

D. Conspirators must intend the hann that results from the conspiracy.
A conspiracy to commit negligence is not actionable. The plaintiffs'
conspiracy claim is really a negligent failure-to-warn claim. . . . ... .... .......... . ... 52

E. The plaintiffs' conspiracy cause of action is precisely the type of

speculative and unsupported claim that requires summary judgment.
The circuit court did not commit error in granting summary judgment. ............... 56

1. Required elements of a conspiracy. . ... . . . .. .. ............ . .. . ........ . .......... .. ... 60

2. There is no evidence of a conspiracy starting in 2004. . ... .. ..... ...... .... ... 61

a. The plaintiffs ' assertion of a conspiracy to "fix"

the outcome of Michael's juvenile proceedings
is based on pure speculation. . .. ..... . , .. ...... ....... .... ............. 61

b. There is no evidence that Bishop Whitcomb assigned

Sandralee Jensen as the Relief Society president and
advanced Michael to the office of "teacher" as part
of a "conspiracy of silence." ................ . ............ .. .......... . 62

c. The defendants did not, as part of the conspiracy,

ignore "signs" that R.J. had been abused. . ... ... ......... ... .. ............ 63

d. The Jensens had nothing to do with the alleged

2006/07 high council meeting and it certainly is not
evidence that they were part of a conspiracy. . . . .. ..... .... .. ........ 64

e. There is no evidence that the alleged co-conspirators

were aware of any possible sexual abuse committed by
Michael except the possible abuse ofZ.W., purportedly
disclosed to the Jensens and Bishop Fishel in 2008. ............ . .. 64

f. There is no evidence that the Jensens conspired with

the alleged co-conspirators to create opportunities
for Michael to babysit. ........... .. ...................................... 67

V. CONCLUSION ..... . .. . .. .. .. . . . ............... .. ............................................. . ...... 69

iii
 TABLE OF AUTHORITIES

West Virginia Supreme Court Cases

Ash v. Allstate Ins. Co. ,

No. 12-1533, 2013 WL 5676774 (W.Va. Oct. 18, 2013) .. ... .. ... ... ......................... 52, 60

Bluefield Supply Co . v. Frankel's Appliances, Inc.,

149 W.Va. 622, 142 S.E.2d 898 (1969) ........ .... ....... .... ...................... ... ... .. ...... . ..... 3

Collins v. Bennett,
199 W.Va. 624, 486 S.E.2d 793 ( 1997) ......... ................... ....... ...... . .. ... ... .. ........... 39

Cook v. Heck 's Inc.,

176 W.Va. 368, 342 S.E.2d 453 (1986) .. .... .... ... ......... ... .. ... ... .............................. 60

Crum v. Equity Inns, Inc.,

224 W. Va. 246,685 S.E.2d 219 (2009) .. .... .. .... .... .. ................................. .. .. ....... .56

Daniel v. Stevens,
183 W.Va. 95, 394 S.E.2d 79 (1990) ...... ... ... ........... ........ .. .. ..... ........ ... .. .. ... ... ......35

Dixon v. Am. Indus. Leasing Co.,

162 W.Va. 832, 253 S.E.2d 150 (1979) .. .... ... .......... ... .. ... ...... .... . ...... ... ...... ....... 62, 65

Dunn v. Rockwell ,
225 W.Va. 43, 689 S.E.2d 255 (2009) ... ....... .... .. ........... ........................ 21, 29, 3 1, 52

Dunn v. Heck' s Inc.,

184 W.Va. 562,401 S.E.2d 908 (1991 ) .. . ....... ...... ... ................................ ..... ....... ..28

Jividen v. Law,
194 W. Va. 705,461 S.E.2d 451 (1995) ............................. .. ... ..... ...... ... .. ... .... ........56

Mallamo v. Town ofRivesville,

197 W. Va. 616, 477 S.E.2d 525 (1996) .................. ............. .. ............. .. ... ......... 23, 53

McKenzie v. Carroll Int'l Corp.,

216 W.Va. 686,610 S.E.2d 341 (2004) ........................ ....... ........ ...... .. ....... ... .. .... ...39

O'Dell v. Stegall,
226 W. Va. 590, 703 S .E.2d 561 (20 10) .... . .. .......... .. ..... .. .. ................... ..... ......... .. .. 60

Parsons v. Consolidated Gas Supply Corp.,

163 W.Va. 464, 256 S.E.2d 75 8 (1979) ...... .... .. ............. ............. .. ........... .. ...... ....... 28

Porter v. Mack
50 W.Va. 581,40 S.E. 459 (1901) ......... .... ...... ... .................. .. ... ................. . .......... 62

Province v. Province,
196 W.Va. 473, 473 S.E.2d 894 (1996) ... ............ ... .............. ......... ..... ... .. 21 , 25, 27, 31

IV
Riffe v. Annstrong,
197 W.Va. 626,477 S.E.2d 535 (1996) ...... ...... ................ .... .. .... .... . 21 , 30, 32, 33, 34

Skaggs v. Elk Run Coal Co .. Inc.,

198 W.Va. 51 , 479 S.E.2d 561 (1996) ....... ..... ... ..... . ... .. ....... ... ... . .. ....... .36, 37, 38, 40

State v. Jensen,
No. 13-1088, 2014 WL 2681229 (W.Va. June 13, 2014) .... .... .. ........ .... ............ .. .. . ], 9

State ex rei. Myers v. Wood,

154 W.Va. 431,175 S.E.2d 637 (1970) .. .. .... ...................... .. .. .. .. .. .. .................... 52

St. Luke's United Methodist Church v. CNG Development Co.,

222 W .Va. 185, 663 S.E.2d 639 (2008) .............. .... .. .............. .. ........ .. ........ .... .... 27

Tennant v. Marion Health Care Foundation. Inc.,

194 W.Va. 97, 459 S.E.2d 374 (1995) .... ...... .... .. .... .. ...... .................. ................. 32

Vaughan v. Greater Huntington Park & Recreation Dist.,

223 W.Va. 583, 678 S.E.2d 316 (2009) ........ .. ..... .. . . . . ........ . . ................. .. .. .. 3 1, 32, 33

Wells v. Key Communications, LLC,

226 W.Va. 547,703 S.E.2d 518 (2010) .. .... .... .. ...... ................ .. ........ ...... .... 35, 37, 39

Williams v. Precision Coil, Inc.,

194 W. Va. 52,459 S.E.2d 329 (1995) ...... ............ .... ............................ .. ............ 56

Other Cases

Basic Chems., Inc. v. Benson,

251 N.W.2d 220 (Iowa 1977) ..................................... .. .. .... ............ ......... . ......... 54

Bennett v. Skyline Com.,

52 F. Supp. 3d 796 (N.D.W.Va. 2014) ........ ...... .... .. .... .. .................................... .. . 53

Bentz v. Fischer,
2012 WL 1880616 (C.D. Ill. May 22, 2012) .......... ............. .. ........ ...... .. ...... ........... 30

CMAX, Inc. v. Drewry Photocolor Com.,

295 F.2d 695 (9th Cir. 1961) ....... . ...... ............... ......................... . .... .... . . . .. ......... 26

Cresser v. Am. Tobacco Co.,

174 Misc. 2d 1, 662 N.Y.S.2d 374 (Sup. Ct. 1997) .. ........ .. .................. .. .. .......... ...... 54

Deeter v. Second Nature Therapeutic Program, LLC,

42 F . Supp. 3d 450 (E.D.N.Y. 2014) .................. .. .. ............ .. ........ ........................29

Dunlap v. Cottman Transmission Sys., LLC,

287 Va. 207, 754 S.E.2d 313 (2014) .................. .................... .. ............ .... .. .... ......62

v
Frayer Seed. Inc. v. Century 21 Fertilizer & Farm Chemicals. Inc.,
51 Ohio App. 3d 158, 555 N.E.2d 654 (1 988) .... .. ..... ..... .... ..... .. ... ........... ... ........ .... ...62

Gardner v. Westinghouse Broadcasting, Co.,

559 F.2d 209, 212 (3d Cir.1977) .... .. ... .. ... ... . .... .... .... ... ........... ... .... ... .... .. .... ... ... ... .. 33

Hinkle v. City of Clarksburg,

81 F.3d 416 (4th Cir. 1996) .. ....... ... ..... .... ... .... .... . ..... .. .... .... ............ .. .. ...... .. ... ....... 60

Hodge v. D.C. Hous. Fin. Agency,

1993 WL 433605 (D.D.C. Oct. 15, 1993) .. ........ ...... .. .. .... .. .. .. ............ ...... .... ......... 29-30

In re Fischel,
557 F.2d 209, 213 (9th Cir.1977) ... .. ... . ........ ...... .... ... ... .. ....... .. . ....... ... .. .... ... .... .. .... .33

In re Trilegiant Corn .. Inc.,

11 F. Supp. 3d 132 (D. Conn. 2014) .. .... .. .... .... ........ .... .. ...... .. ........ .. .. ........ .. .. .... .... .30

Jack Walters & Sons v. Morton Bldg.,

737 F.2d 698 (7th Cir. 1984) ... .. ... ... .. ....................... . ... ............................... . ... .. 25, 26

Koch v. Royal Wine Merchants, Ltd.,

907 F. Supp. 2d 1332 (S.D. Fla. 2012) .. ...... .... ... .... .... . ... ... ... ............ ..... .. ...... ..... ..... .3 0

Lauter v. Anoufrieva,
642 F. Supp. 2d 1060 (C.D. Cal. 2009) .. .. .. .. .......... .. ................................................ 29

Little Caesar Enters. Inc. v. Smith,

916 F. Supp. 662 (E.D. Mich. 1996) ... .. ... ........ .. .. . ..... .. ... .. ... .. ..... ..... ..... .... ... ....... .. ... 26

Malone v. Kantner,
2015 WL 5156861 (D. Neb. Sept. 2, 2015) ............... .. .......... .. ........ .. ............ .. .......... 30

McNellis v. Merchants Nat. Bank & Trust Co. of Svracuse,

385 F.2d 916 (2d Cir. 1967) ......... .. ...... .. ............. .... .......... .. ...... .......... .................. 27

McPheters v. Maile,
64 P.3d 31 7 (Idaho 2003) ...... ..... .. .. . .... ... . .......... .... . ... ... .......... .. .. . ... .. ...... ...... ... . .. . 29

Page v. Preisser,
585 F.2d 336 (8th Cir. 1978) ..... .. ... .. ... ....... ... ..... .... ... .. ....... .. .... .. .. . .. ....... ............. .. 25

Qwest Communications Corp. v. Free Conferencing Com.,

2014 WL 5782543 (8th Cir. 2014) .... .. .... .. .. ........ .. ........... .. .. .. .. .. .. .. .. ........... ........ .53-54

Rogers v. Furlow,
699 F. Supp. 672 (N.D. Ill. 1988) .. . .. ....................................................................... 54

Sackman v. Liggett Group, Inc.,

965 F. Supp. 391 (E.D.N.Y. 1997) .......... ... .... .. ... .. .. ........ .. ........ .... .. .... .. ...... .. ...... .... . 54

VI
Samaad v. City of Dallas,
940 F.2d 925 (5th Cir. 1991) .... .. ..... ... . ........ ..... ... ........... ........ ....................... 25, 27

Schmidt v. Bassett Furniture Indus.,

2009 WL 3380354 (E.D. Wis. Oct. 20, 2009) ............. ... .... ... ..... .............. ... .. ......... ..30

Sonnenreich v. Philip Monis, Inc.,

929 F. Supp. 416 (S.D. Fla. 1996) ........ .. ... ........... ........................... ..................... 54

Tri V. J.T.T.,
162 S.W.3d 552 (Tex. 2005) ........ . ..... ... .... ............. .. .............................. ..... ....... 54

Triplex Communications, Inc. v. Riley,

900 S.W.2d 716 (Tex.1995) ......................... ..... ... ... .. ... .. ......... ..... ...... .. ........ ..... .53

United States v. Siegel,

536 F.3d 306 (4th Cir. 2008) ... ...... .. ................... .................................... ............ 36

William v. The AES Corp.,

28 F. Supp. 3d 553 (E.D. Va. 2014) ........................................................... . .. . ...... 54

Witcher v . Reid,
70 Va. 415,2006 WL 1494675 (Va. Cir. Ct. 2006) ..................... .. .... .... ..... ......... .. .... 54

Wooley v. Lucksinger,
14 So.3d 31 1 (La. App. 2008) ..... .... .. ... . ...................... ............ .... . .... ......... ........ .. 54

Wright v. Brooke Group Ltd.,

114 F. Supp. 2d 797 (N.D. Iowa 2000) .................... ............................................. .54

Other Authorities

United States Constitution, Amendment I ....... ..... ......... .. .... .... .......... .... ... .... .... ........ 62

Constitution of West Virginia, Article III, 15 ... .... ...... .. ... .... .. ......... ..... .................. . 62

W. Ya. Code 55-7A-2(a) .... ... .. ................ ... ...... . ....... .................. ....................... 2

Rule 8(e)(2) of the West Virginia Rules of Civil Procedure ...... ...... .... .. ..... ..... ................ 3

Rule 54(b) of the West Virginia Rules of Civil Procedure ................................ .... . ..passim

Rule 56 of the West Virginia Rules of Civil Procedure ............ ........ ............................ 56

Rule 19 of the West Virginia Rules of Appellate Procedure ................ ......... .. ............... 24

W.Va. R. Evid. 403 ............ .................................................... ................. 22, 36, 38

vii
Utah Code Ann. 76-2-301 ................... .. .... .. ................. ............. ... ..... . ...... .... ........ 41

Utah Code Ann. 76-3a-11 7 .. .... ..... ....... .. ........ . ... . ........ . .. ....... . .. . . ... ...... .... . ..... . .. .. .. 41

Utah Code Ann. 77-27-21 .5(l)(f)(vi) ............ ............................... ............ .. ........ . ... .41

Rule 4-202.03 of the Utah Judicial Council Rules of Judicial Administration ............ .. . ... .45, 46

15A C.J.C. Conspiracy 15 . . ..... .... ... . .... . ......... . . .. .... ............................................... 53

16 Am. Jur. 2d Conspiracy 51 ....... .. ...... . ... ......... .. . .. ... . . .. . . .. ........ ... .. ........... ........... 53

Vlll
 I. STATEMENT OF THE CASE

A. PROCEDURAL HISTORY

Respondents Christopher Jensen (hereinafter "Chris Jensen") and Sandralee Jensen, are

defendants in thi s civil lawsuit and are the parents of Christopher Michael Jensen (hereinafter

"Michael Jensen"), who is also a defendant in this civil action. 1 In February 2013, Michael was

tried criminally in the Circuit Court of Berkeley County, West Virginia on two felony counts of

sexual assault in the first degree and two felony counts of sexual abuse by a parent, guardian,

custodian, or person in a position of trust. See State v. Jensen, No. 13-1088, 2014 WL 2681229,

at *1 (W. Va. June 13, 2014). The criminal charges arose from an incident that occurred in

November 2007 when Michael was babysitting W.T., then four years old, and his brother, J.T.,

then three years old. The jury acquitted Michael of sexual assault in the first degree regarding

J.T. but found him guilty of sexual assault in the first degree regarding W.T. The jury also

convicted Michael of two felony counts of sexual abuse by a parent, guardian, custodian, or

person in a position of trust, one for each of the two boys . ld. Michael appealed those

convictions and this Court affirmed by Memorandum Decision on June 13, 2014. Id.

The Petitioners/Appellants in this case (hereinafter "the plaintiffs") filed this civil lawsuit

on September 27, 2013. JA11946-12012. In this civil action, the plaintiffs seek to shift the

responsibility for Michael ' s conduct to others, including Michael ' s parents and the church to

which Michael and his parents belonged. When examined closely, however, the plaintiffs'

claims in this lawsuit are actually a contrived attempt to make The Church of Jesus Christ of

1 The undersigned counsel represent only Chris and Sandralee Jensen in this matter. Michael is not represented by

counsel. To the extent that this brief refers to "the Jensens," the reference is only to Chris and Sandralee Jensen.

1
Latter-day Saints (hereinafter " the Church") legally responsible for the conduct of one of its

members.z

This appeal involves only the circuit court's dismissal of the plaintiffs' claim of civil

conspiracy. The plaintiffs' conspiracy claim is the most contrived of all of the plaintiffs'

attempts to blame others for Michael's conduct. The plaintiffs' conspiracy allegations are based

on rumors, innuendo, unsupported speculation, conjecture and on unreasonable, irrational,

improbable and conclusory allegations and inferences. The circuit court correctly recognized

these deficiencies in granting summary judgment to the Jensens and the Church defendants on

the plaintiffs' conspiracy claim.

The plaintiffs' original complaint alleged that Michael Jensen sexually abused 12

children in five different families and brought various causes of action, each seeking the same

relief, against Michael, Chris and Sandralee, the Church and two Church entities - Corporation

of the President of The Church of Jesus Christ of Latter-day Saints and Corporation of the

Presiding Bishop of The Church of Jesus Christ of Latter-day Saints, and two local clergyman of

the Church, Steven Grow and Donald Fishel. JA11946-12012. On January 31, 2014, the

plaintiffs filed an Amended Complaint adding the Doe-6 family as plaintiffs and Unnamed-

Defendant-! (hereinafter "UD-1 ") as a defendant. JAl 0534-614.

2
The plaintiffs could have sued Chris and Sandralee in their capacities as Michael's parents under various potential
theories of liability. For example, because Michael was a minor and living with the Jensens when several of his
alleged offenses occurred, those families could have sued Chris and Sandralee under W.Va. Code 55-7A-2(a)
(Parental liability for willful, malicious or criminal acts of children). They did not do so. Instead, the plaintiffs
asserted throughout the Amended Complaint that Chris and Sandralee Jensen were acting as agents of the Church
d efendants with respect to the "acts and omissions" alleged in the pleading. JAJ0538-1063 7 [Amended Complaint
~~ 44, 45, 64, 67, 68, 69, 71, 76, 77, 133, 144, 155, 165, 193 and 212. See also Heading in IV. B. of Amended
Complaint ("At All Relevant Times the Individual Defendants and Unnamed Defendant- I Were Agents of the
Church Acting Within the Scope of Their Authority.")].

2
 The plaintiffs pleaded five separate causes of action for negligence. JA1 0574, 78, 85, 88.

Only one of those five causes of action has been dismissed, and the dismissal of that claim has

not been appealed. JA2. Even after the circuit court's dismissal of their cause of action for civil

conspiracy, the plaintiffs also have causes of action remaining for fraud, intentional infliction of

emotional distress, and punitive damages (though that is not really a separate claim). JA10592,

600, 602. The plaintiffs also have causes of action remaining against Michael for battery and

assault. JA 10608-09. Each of these causes of action seeks identical relief.

On December 3, 2015, the circuit court granted summary judgment in favor ofUD-1 on

the conspiracy cause of action. JA 1-17. The court denied other motions for summary judgment,

and took several under advisement, including motions by the Church defendants and the Jensens

on the plaintiffs' conspiracy cause of action against them. 3 JA1-17. On December 29, 2015, the

circuit com1 granted various motions in limine filed by the plaintiffs and defendants, denied

others, and took some under advisement. JA20-26. On December 31, 2015, the circuit court

ruled on those motions and granted summary judgment on the plaintiffs' conspiracy cause of

action against the Jensens and the Church defendants. JA27-33. On January 11 , 2016, the

circuit court certified the orders granting summary judgment on the conspiracy cause of action as

final under Rule 54(b) ofthe West Virginia Rules of Civil Procedure. JA34-35.

3
Paragraph 204 of the Amended Complaint is one of three alternatively plead allegations by the plaintiffs of a civil
conspiracy. See Rule 8(e)(2) of the West Virginia Rules of Civil Procedure. The other two alternatively plead
allegations, contained in paragraphs 203 and 205-206 of the Amended Complaint, allege that Chris and Sandralee
Jensen participated in the alleged conspiracy as agents ofthe Church. JAI0602-10604. Both the Church defendants
and the Jensens have denied that the Jensens were acting as agents of the Church with regard to any of the
allegations of plaintiffs' Amended Complaint and the plaintiffs bear the burden of establishing any such agency.
Bluefield Supply Co. v. Frankel's Appliances. Inc., 149 W.Va. 622, 142 S.E.2d 898 (1969). In any event, while the
Jensens joined in other summary judgment motions filed by the Church defendants (including the Church
defendants' motion for summary judgment on all claims of conspiracy), the summary judgment motion that Chris
and Sandralee Jensen filed on their own behalf was focused on paragraph 204, the only place in the Amended
Complaint where Chris and Sandralee Jensen are alleged to be potentially liab le in their individual capacities, and
not as alleged agents of the Church.

3
 B. STATEMENT OF FACTS

1. In January 2012, W.T. and J.T. tell their mother that, five years earlier, Michael
Jensen had sexually abused them. Their disclosure results in the discovery of other
victims and allegations by others.

On January 22, 2012, W.T. and J.T. told their mother, Jane Doe-1 , that Michael Jensen

had sexually abused them. JA2599, 605 [Jane Doe-1 Dep. 36:21-23]. The abuse had occurred

more than four years earlier while Michael was babysitting W.T. and J.T. JA2605 [Jane Doe-1

Dep. 82: 5-15]. Jane Doe- I called her mother that night, and her mother told her to call their

bishop, Chris Vincent. JA02608 [Jane Doe-1 Dep. 95:14 - 96:6). Bishop Vincent was not

available, so Jane Doe- I spoke to Joe Kerner, one of Bishop Vincent's counselors. 4 JA2609

[Jane Doe-1 Dep. 98:12- 99:23].

Mr. Kerner told Jane Doe-1 to report what the boys had told her to the police. JA2609

[Jane Doe- I Dep. I 00:3-5). Jane Doe- I called the police the next day. JA261 0 [Jane Doe-1

Dep. 104:1 0-15). Later, Bishop Vincent spoke to Jane Doe- I and he also encouraged Jane Doe-1

to call the police. JA7346 [Vincent Dep. at 178 :22-179:9).

As noted above, Michael was charged with and convicted of abusing W.T. and J.T.

Following their disclosure, other victims would come forward, and others would allege Michael

had abused them.5

4
Bishops are the lay clergy of the local congregations of The Church of Jesus Christ of Latter-day Saints.
5
It is undisputed that Michael sexually abused some of the minor plaintiffs, but there are disputes about the
allegations made by others. And several of the original plaintiffs withdrew their claims:. C.B. (October 3, 2014),
Stipulation of Dismissal Without Prejudice (Oct. 3, 2014); minor-plaintiffs S.C., R.B., and C.S. (April 16, 2015),
Stipulation of Dismissal Without Prejudice (Oct. 3, 2014); and John Doe-2 (Dec. 17, 2015), Stipulation ofDismissal
(Dec. 17, 2015).

4
2. Michael sexually abused P.C. in April 2007, but she did not disclose the abuse, and
there was no reason for the Jensens to believe she had been sexually abused until she
disclosed the abuse in September 2012.

The first now known instance of Michael sexually abusing a small child occurred in April

2007, when Michael sexually abused P.C., the four-year-old daughter of John and Jane Doe-6.

JA10559 [Amended Compl. ~~ 79]. But no one knew P.C. had been sexually abused until she

disclosed it in September 2012, after Michael was first charged with the offenses related to W.T.

and J.T.

Michael watched P. C. and her siblings while their parents attended an out-of-town work

conference. JA03534 [Jane Doe-6 Dep. 45:21 - 48:20]; JA10559-60 [Am. Compl. ~~ 79-81].

Michael's older brother, Blaine, was babysitting with him, but Michael was alone during times

when Blaine was not available. JA1325 [Jane Doe-6 Dep. 47:16-20].

While Michael was there, P.C. 's 11-year-old brother called their mother and reported that

P.C. was upset for some reason. " [P.C.] is begging me not to leave" and "I don't know what's

wrong with her," he told her. JA3535 [Jane Doe-6 Dep. 53:11-15]. P.C. told her that Michael

was being "mean" to her. JA3536 [Jane Doe-6 Dep. 53:20 - 54:3]. P.C.'s other brother told his

mom that P.C. was just "acting like a brat .. .. " JA03536 [Jane Doe-6 Dep. at 55:2-11]. And

Michael told P.C.'s mom that P.C. was just upset because she didn't want to take a nap.

JA03536 [Jane Doe-6 Dep. at 55:10- 56:2].

When P.C.'s mother (Jane Doe-6) got home, she discovered a hand-shaped bruise on

P.C.'s bottom, which she assumed was from Michael spanking her. JA03539 [Jane Doe-6 Dep.

82:4-18]. The following Monday, P.C.'s mother spoke with Michael and his parents. JA3540

[Jane Doe-6 Dep. 86:8-16]. She told them about the bruise on P.C.'s bottom and how upset and

scared P.C. had been. JA3541 [Jane Doe-6 Dep. 90:6-13]. Both Chris and Sandralee

5
acknowledged that Michael had probably spanked P.C. hard enough to leave a bruise. JA02820-

21 [S.Jensen Dep. 347-49, 363]; JA02934 [C.Jensen Dep. 307-08]. But no one suspected that

Michael had sexually abused her. JA844-45 [C.Jensen Dep. 207:22-208:6.]; JA2824 [S.Jensen

Dep. 363:6-11]; JA2934 [C.Jensen Dep 305:21 - 306:21]. P.C. ' s mother has testified that she

asked P.C. more than once if Michael had touched her inappropriately, and P.C. said that he had

not. JA3538 [Jane Doe-6 Dep. 77:8-16]; JA3543 [Jane Doe-6 Dep. 97:14- 99:3]. No one said

anything to local Church leaders about any of this. JA3559 [John Doe-6 99:4-18].

P.C. disclosed the abuse for the first time in 2012 after Michael had been charged with

abusing the Doe-1 children. JA10573 [Am. Compl. ~ 117]. The plaintiffs do not allege that any

Church leader became aware of this incident until after Michael was arrested. Aplt. Br. at 9.

The other alleged co-conspirator, UD-1 , did not learn that P.C. had been abused until he was

deposed in this case. JA120 14 [UD-1 Dep. 109:17-21].

3. The Jensen family continued to participate in the Church as ordinary members.

During this time, Michael and his family continued to participate as ordinary members in

their local Church congregation-first in the Mill Creek Ward, in which Sandralee was the

Relief Society President for a time; 6 and then, after the Mill Creek Ward was split, in the newly

created Hedgesville Ward. JA1607 [S Jensen Dep. 144:4-21].

Shortly after the Jensens moved to West Virginia in 2005, Michael turned 14. In the LDS

Church, essentially every boy is ordained a " deacon" at the age of 12, a "teacher" at the age of

14, and a "priest" at the age of 16. JA3000 [S Grow Dep. 253: 1-7]. A boy is typically

interviewed by his bishop to determine if he is "morally worthy" before he is ordained to one of

these priesthood offices. JA3001 [S Grow Dep. 254:14-20]. Shortly after Michael turned 14,

6
The Relief Society is an organization for all of the adult women in the ward. The Relief Society president oversees
the Sunday class for the women and is responsible for "compassionate service" for all ward members. As with all
other "callings" in the Church, the Relief Society president generally changes periodically.

6
with the approval of Matthew Whitcomb, his bishop, he was ordained a teacher. JA2999 [S

Grow Dep. 249: 1-12]. There is no evidence in the record that Bishop Whitcomb was aware of

any misconduct by Michael or had any reason to suppose he was not "worthy" according to the

Church ' s ecclesiastical standards of being made a teacher.

4. Michael sexually abused Z.W. in early 2008. Z.W. allegedly told his parents, but
they did not report the abuse to authorities. The parents allege that they reported
the abuse to the Jensens and Bishop Fishel.

In early 2008, Michael (now 16 years old) and his mother, Sandralee, started babysitting

Z.W. and A.W., the 4- and 6-year old sons of John and Jane Doe-2. Sandralee would pick up

Z.W. and A.W. from their bus stop-usually on Mondays and Thursdays-and watch them with

Michael at the Jensens' home until John or Jane Doe-2 could pick them up at about 6:30 or 7:00

p.m. JA5810 [Jane Doe-2 Dep. 60:3 -15].

Jane Doe-2 testified that one morning in April 2008 she was getting ready to put Z.W. on

the bus when he told her " [t]hat Michael forced him to touch his penis and to put his penis in his

mouth ...." JA12023 [Jane Doe-2 Dep. 71:2 - 72:7]. Jane Doe-2 asked A.W. if Michael had

ever done anything like this to him and he said no. JA12026 [Jane Doe-2 Dep. 82:19-24].

According to Jane Doe-2, she and her husband, John Doe-2, decided to contact

Sandralee. JA12024 [Jane Doe-2 Dep. 76:7-1 0]. Jane Doe-2 says she told Sandralee what

Michael had been doing and Sandralee said she would talk to Michael and get back to her.

JA12025 [Jane Doe-2 Dep. 79:9 - 80:15] . Shortly thereafter, according to Jane Doe-2, Chris and

Michael Jensen showed up unannounced at her home. JA12027 [Jane Doe-2 Dep. 85:1-6]. Jane

Doe-2 claims that Chris Jensen told her that Michael did not abuse Z.W. JA12027 [Jane Doe-2

Dep. 86:1 8-24].

7
 John Doe-2 was not sure if he believed that his son had been abused. ("I knew something

was wrong. I didn 't believe it 100 percent, to me it was a very confusing situation I was

hearing." JA6738 [John Doe-2 Dep. 95: 14-16].) According to Jane Doe-2, her husband

"questioned it. He said kids make up stories sometimes." JA12028 [Jane Doe-2 Dep. 90:24-

91: 1]. They decided to talk to Bishop Fishel. JA 12028 [Jane Doe-2 Dep. 91 :22- 92:4].

The Jensens and the Doe-2 families were both members of the newly-created Hedgesville

Ward. JA 12022 [Jane Doe-2 Dep. 36:3-20]. Donald Fishel, one of the alleged co-conspirators,

was the new bishop of this new ward. JA6736-37 [John Doe-2 Dep. 56:22- 57:9]. There is no

evidence in the record that Bishop Fishel was aware of any previous misconduct by Michael.

John and Jane Doe-2 claim that they told Bishop Fishel that Michael had been babysitting

their children and that Z.W. had said that Michael was abusing him. JA12029 [Jane Doe-2 93:9

- 94:14]. They claim that Bishop Fishel said "he would look into it and get back to us."

JA12029 [Jane Doe-2 Dep 95:9-10].

John and Jane Doe-2 testified that about a week later they spoke with Bishop Fishel

again. JA12030 [Jane Doe-2 Dep. 97:22 - 98:3; 99:2]. According to their testimony, Bishop

Fishel explained that he could not go into detail because his conversations with Michael were

confidential, but that "he believes a video was involved and [that] Michael had an issue with

pornography, but that [Z.W.] was not abused." JA12030 [Jane Doe-2 Dep. 99:19- 100:5]. Jane

Doe-2 says she was not satisfied with Fishel's answer. JA12030-31 [Jane Doe-2 Dep. 100:24 -

101 :3]. John Doe-2 said he accepted that explanation. JA6741 [John Doe-2 Dep. 124:16-19].

Bishop Fishel has a different memory. He testified that he had no conversation at all with

Jane Doe-2 and that John Doe-2 "never told me that his children were abused by anybody."

JA6919 [Fishel Dep. 36:15-1 6). "The [Doe-2s] never made such an accusation." JA6922

8
[Fishel Dep. 68:4-5). Rather, John Doe-2 told Bishop Fishel that his son had pointed at Michael

and said, "That's the man who hurt me," and that his children did not want Michael to babysit

anymore. JA6919-20 [Fishel Dep. 36:18 - 37:6). "He asked me to ask Michael what happened,

and I told him I would." JA6922 [Fishel Dep. 68:21-22). Bishop Fishel testified that Michael

"admitted he was watching pornography and it may have been seen by the [Doe-2] children."

JA6925 [Fishel Dep. 76:12-13). He did not ask Michael if he had sexually abused Z.W. because

he "had no reason to ask that question .... " JA6926 [Fishel Dep. 89:10).

At Michael's criminal trial, Z.W. was offered by the State as a Rule 404(b) witness. See

State v. Jensen, supra, 2014 WL 2681229 at *3. Michael testified on his own behalf at the

criminal trial. In an attempt to explain Z. W. 's allegations against him, Michael testified that

A.W. and Z.W. had seen him looking at pornography. 7 JA6946.

It is undisputed that no one, including John and Jane Doe-2, reported the alleged abuse to

authorities. John Doe-2 testified that he and his wife never discussed or "even considered the

possibility" of calling the police. JA6744-45 [John Doe-2 Dep. 133 :20-134:3]. Jane Doe-2

testified that they discussed whether to call the police, but chose not to. JA06727-28 [Jane Doe-

2 Dep. 107:24- 108:5]. She did not want to put Z.W. through any more trauma. JA6728 [Jane

Doe-2 Dep. 108:3-12). And she was afraid her son would not be believed. JA6728 [Jane Doe-2

Dep. 108:13-22]. The Doe-2s did not report Z.W.'s abuse to the police until late 2012, after

7
The discrepancy between John and Jane Doe-2's testimony and Bishop Fishel's testimony is not material to the
issue of conspiracy. For purposes of this appeal, the Court can accept the Doe-2 's version of events. What matters
is that even if Bishop Fishel was in fact told that Z.W. said Michael had abused him, there is no evidence in the
record that the Jensens conspired with Bishop Fishel or anyone else to cover it up. It is undisputed that Bishop
Fishel did merely what was asked of him- h e talked to Michael and asked what had happened. In hindsight, one
might argue that Fishel should not have believed Michael, and perhaps he should have reported the allegation to
authorities. Those questions raise the possibility of negligence; but there is no evidence of conspiracy. It can no
more be inferred from Bishop Fishel ' s failure to report or the Jensens' failure to report that they were part of a
conspiracy than it can be inferred from John and Jane Doe-2 's failure to report that they were part of a conspiracy.

9
learning that Michael had been charged with the offenses related to the Doe-1 family. JA12032

[Jane Doe-2 Dep. 126:1-11].

President Grow was not told about Michael 's abuse of Z.W. until after John and Jane

Doe-2 went to the police in 2012. JA12033 [Jane Doe-2 Dep. 159:1-10]. President Grow

expressed his concern, asked about other victims, and arranged for counseling for the Doe-2

family. JA12033 [Jane Doe-2 Dep. 159:11 - 160:19]. There is no evidence in the record that

any of the Jensens' alleged co-conspirators arranged for or were even aware that Michael was

babysitting Z.W.

5. The plaintiffs allege that in early 2009, Michael abused Plaintiff C.H. while
babysitting. C.H. says Michael did not abuse him. In any case, there was no reason
for anyone to suspect C.H. had possibly been abused until after Michael was
convicted.

Michael babysat C.H., the 3-year-old son of John and Jane Doe-3 , and his siblings one

time in early 2009. JA10568 [Amended Complaint ~~ 101]. However, no one knew that C.H.

had possibly been abused until February 8, 2013. JA4000 [Jane Doe-3 Dep. 64:10-12]. That

was when John and Jane-Doe 3 learned that Michael had been convicted. JA4000. As a result,

Jane Doe-3 asked her children if anything happened when Michael was babysitting them.

According to Jane Doe-3: " [C.H.] said he had to go to the bathroom, and he went into the

bathroom to use the restroom. And he pulled his pants down to go to the bathroom and Michael

came in behind him and shut the door. And at that point Caleb said he felt tired and he closed his

eyes. And then he felt Michael touching him." JA6478 [Jane Doe-3 Dep. 70:7-12]. But in his

own deposition, C.H. testified that he fell asleep on the toilet and only assumes that Michael

touched him:

Q. If you didn' t see Michael touch you and you didn't feel Michael
touch you because you were asleep, why do you think he did touch
you?

10
 A. Because I've heard other things that he's been touching children in
the wrong places, so I'm assuming he's touched me.
Q. But he could have touched other children without touching you,
would you agree with that?
A. Yeah.

JA1694 [C.H. Dep. at 30:9-17]. C.H. said this is also what he told his mother when she asked

him about it. JA1700 [C.H. Dep. at 36:19-37:20].

In any case, it is undisputed that no one had any reason to suspect that Michael had

abused C.H. until after Michael was convicted. It is also undisputed that neither the Church

Defendants nor UD-1 arranged or were even aware of Michael babysitting C.H.

6. It is possible that Michael abused UD-1 's handicapped son, C.P., in 2009. But no
one at the time suspected Michael had abused C.P., and it is still uncertain whether
Michael actually abused him.

The possible abuse of C.P., -- no one really knows whether he was abused or not -- the

handicapped son of UD-1 and his wife, Jane Doe-7, 8 is relevant because the plaintiffs claim that

UD-1 (and by implication his wife) were part of a conspiracy with the Jensens and the Church

defendants. There is no evidence to support that bizarre allegation.

UD-1 's family and the Jensen family knew each other well. UD-1 met and became

friends with Chris Jensen in the 1980s when they were both part of the same Army Reserve unit.

JA12015-16 [UD-1 Dep. 163:18- 164:7]. In 2002, UD-1 got transferred to the Pentagon while

the Jensens still lived in Utah. JA12017-18 [UD-1 Dep. 165:11 - 166:14]. By mere

happenstance, both families ended up in Martinsburg. JA12019 [UD-1 Dep. 167:21 -168:21].

C.P. was born in February 2006 and was adopted by UD-1 and his wife in June of that

year. JA42. He was born with severe physical deformities-he has no right arm and a shortened

8C.P.'s parents were given pseudonyms by the plaintiffs to protect them and their son because of the possibility that
C.P. was abused.

11
left arm. JA66. When C.P. was just two months old, the Jensens started occasionally babysitting

him. JA5712 [Jane Doe-7 Dep. 73:3-5). This included two extended stays of approximately 10

days. JA73-75. Either Chris or Sandralee Jensen, or Janessa or Blaine (the older Jensen

children), was always in the home with C.P. JA5712 [Jane Doe-7 Dep. 73:15- 75:5]; [UD-1

Dep. 308:10-21). With one exception, Michael was not the designated babysitter. JA74.

The Jensens did not babysit C.P. because of any Church responsibility or assignment. As

UD-1 said, "They babysat [C.P.] because they loved [him] and they were our friends. " JA11360

[UD-1 Dep. 311 : 12-16). "[T]he fact that the Jensens babysat [C.P.] was not because of any

position that any member of the Jensen fami ly had [in the Church)." JA11351 [UD-1 Dep.

154:19-22].

C.P. developed a close relationship with Michael 's younger siblings, K.J. and J.J. , and all

of the Jensens "loved him." JA3508 [UD-1 Dep. 183:4-12). UD-1 's wife did not like Chris

Jensen: "Chris and I had, what I would call probably personality differences .... I didn't feel that

he was a very warm and fuzzy person .... I got the generalized feeling that he did not feel that I

was good enough to be married to [UD-1], and those feelings led to my not wanting to spend

time with him." JA3664 [Jane Doe-7 Dep. 67: 17- 68:4]. But she set those "feelings aside

because there were very precious relationships that had developed between my son and J.J. and

K.J. in particular." JA3665 [Jane Doe-7 Dep. 69:14-17]. "I was very much in support of [C.P.]

having those relationships with the kids, and I put negative feelings aside, which I thought were

based on personal issues .. .. " JA5712-13 [Jane Doe-7 Dep. 76:20 -77:7]. But their undisputed

testimony is that neither UD-1 nor his wife had any reason to think that Chris or Michael posed

any kind of danger to C.P. JA11360, 2319 [UD-1 Dep. 310: 15-22] ; [Jane Doe-7 Dep. 198:12-

12
14). In fact, if C.P.'s parents had died, their will initially provided that the Jensens would

become C.P.'s guardians. JA11355 [UD-1 Dep. 195:22- 196:5].

In December 2009, when C.P. was three years old, the Palmers picked up C.P. from the

Jensen home and, that evening, noticed that he had some bruising along the inside of his legs and

that his penis was swollen. JA3662, 11353 [Jane Doe-7 Dep. 18:13-15; UD-1 Dep. 186:15-22).

Because of his physical deformities, C.P. probably could not have inflicted these injuries on

himself. JA3503 [UD-1 Dep. 65-66]. C.P. had been in the Jensen home many times without

incident-and there was no reason to suspect that in this instance he had been sexually abused.

JA3668, 11345, 11359 [S.Jensen Dep. 120:3-5; 197:1-4, 198:3-7; UD-1 Dep. 308:5-9]. C.P.'s

parents did not talk to their bishop about any of this. JA11356 [UD-1 Dep. 198:2-12). The

incident had nothing to do with the Church.

It was not until after Michael was charged and they learned that Michael had sexually

abused other children that UD-1 and his wife considered the possibility that Michael had abused

C.P. JA1 1359, 3502-03,2276-78, 2286, 2354 [UD-1 Dep. 308:5-9); [Jane Doe-7 Dep. 101:16-

102:4; 197:1 -4; 198:3-7; UD-1 Dep. 63:4-22, 66:20- 67:3, 150:19- 151:3, 156:22- 157:2,

209:1 2-15; UD-1 Decl. ~~ 2-3). The adult plaintiffs have acknowledged that they have no

evidence that C.P.'s parents suspected that Michael had abused C.P. before 2012. JA2357, 2364,

2422, 2426, 2428, 2454, 2361-2, 2373-5, 2377; Jane Doe-1 Dep. 223-24, 293-99, 305-06; Jane

Doe-2 Dep. 234-35, 301, 303-04, 310-1 2; John Doe-2 Dep. 176; Jane Doe-5 Dep. 458-59, 508-

09; Jane Doe-6 Dep. 118-19.

Moreover, it is still not clear whether Michael abused C.P. or not. C.P. has been asked by

his parents and has been in counseling but does not remember any instance in which Michael

abused him. JA11359-60 [UD-1 Dep. 308 :22-309: 10).

13
 There is no evidence in the record that the Church defendants arranged, endorsed,

approved, or were even aware of C.P. 's relationship with the Jensen family. There is no

evidence in the record to support the plaintiffs' outrageous allegation that UD-1 and his wife

subjected their adopted handicapped son to sexual abuse by Michael as part of some unthinkable

conspiracy to facilitate opportunities for Michael to abuse children. Nor is there any evidence in

the record to support the plaintiffs' allegation that UD-1 and his wife refused to seek medical

treatment for C.P. because they knew it would trigger a report to authorities, which would get

Michael in trouble.

7. Chris Jensen finds Michael in K.J.'s bedroom in 2010.

By the summer of 2010, Michael was now an adult. With the exception of the disputed

incident involving Z.W., there is no evidence in the record that anyone was aware of any

possible sexual abuse committed by Michael. Michael had gone off to college earlier that

academic year, but did not go to his classes and came home after only one semester. JA6991 -2,

2828 [C.Jensen Dep. 371 :10-372:2; S.Jensen Dep. 467:3-9]. When he returned, his mother

kicked him out of the house temporarily because of his "rude" behavior and "[t]errible, horrible

attitude." JA2829 [S.Jensen Dep. 471:1 -472:1].

That summer, after Michael had started living at home again, Chris Jensen went into his

12-year-old daughter K.J.'s bedroom and saw her lying in the bed with now 18-year-old Michael

standing by the window. JA2947-48 [C.Jensen Dep. 402:21 - 405:7]. "[T]he definite feeling I

got was he was standing by the window looking guilty ... having done something wrong, and I

didn't know what it was." JA2948 [C.Jensen Dep. 406:1-4]. Chris told Michael to leave the

room and then asked K.J. what had happened. "And she then proceeded to tell me that he had -

14
lain on her and tried to kiss her." JA2948 [C. Jensen Dep. 406:6-17] . Chris immediately kicked

Michael out of the house. JA2948-50 [C.Jensen Dep. 408-414].

The incident with K.J. was not the sole reason Michael was kicked out of the house; it

was the "final straw." JA848-9 [C.Jensen Dep. 412:21 - 413:14]. Michael had a history of

being "disobedient [and] rebellious." JA6989, 7059-60 [C.Jensen Dep. 369:10-17; S.Jensen

Dep. 463 :15 - 464:21]. He was disrespectful to his parents, "didn' t follow rules," and was

"always pushing the limits." JA6993-4, 7065 [S.Jensen Dep. 478:3-7; C.Jensen Dep. 382:17-

383:2]. He talked back and created a contentious environment in the house with his rude and

negative attitude. JA7039 [S.Jensen Dep. 307:7-11 ]. Sandralee got so frustrated with him at

times that she "want[ed] to rip [her] hair out." JA7064 [S.Jensen Dep. 476:12- 16]. "His

disrespect was the reason we asked him to leave the house ... . We would try to loosen the rope,

so to speak, and let him have those freedoms. And as you did that, the disrespect and the attitude

and just the way he was in the house was just awful." JA6996 [S.Jensen Dep. 148:21- 150:3].

And significantly, Michael was now an adult. JA849 [C.J. Dep. 413:10-14.]

After getting kicked out of the house, Michael initially stayed with the Winburn family,

church members who resided in the Mill Creek Ward. Because Michael was now in his ward,

the Jensens spoke to Chris Vincent who was the bishop of the Mill Creek Ward at the time. The

Jensens told Bishop Vincent that Michael "had reached a point where he is so disobedient .. . and

so disrespectful and cannot - and such a bad example that we cannot have him in his home.

And, therefore, we have kicked him out of the home." JA851 [C.Jensen Dep. 43 1:14-19]. They

hoped that Bishop Vincent could "[h]ave a positive effect on him." JA04014 [Vincent Dep.

106:16-19].

15
 Bishop Vincent testified about his recollection of meeting with Chris and Sandralee to

discuss Michael. "They said that [K.J.], their daughter, wanted Michael out of the house" and

before he could ask why they "immediately began to tell me that they found Michael on top of

[K.J.], and then [Sandralee] began to tell me about a court case where Michael was accused and

tried for hitting a girl back in Colorado, and that it was a sealed case." JA869-71 [C. Vincent

Dep. 103: 18-105:13]. Bishop Vincent did not consider the incident between Michael and K.J.

serious because " [t]hey didn' t make it seem like it was serious." JA873. Bishop Vincent also

recalled that Sandralee told him about "a court case about hitting" so Bishop Vincent assumed

that Michael "was just being aggressive with [K.J.] .... " JA872. The Jensens did not tell Bishop

Vincent that Michael had kissed K.J. or that it occurred in a bed, so he was unaware of any

sexual component to the incident. JA873.

Bishop Vincent also talked to Michael. "And so I said to him, ' Michael, what's going

on? Tell me what's going on .... And then Michael said, 'I've got a drinking problem, I've got-

I'm watching pornography. I'm masturbating, and I'm having sex." JA4017 [Vincent Dep.

119:20- 120:3]. Bishop Vincent asked if the girls he was having sex with were over the age of

18, and Michael said yes, they were. JA40 17 [Vincent Dep. 120:4-9]. " I said, is there anything

else, and he said, that's it." JA4017 [Vincent Dep. 120:11-12]. Bishop Vincent met with

Michael that day and six or seven more times over the next two or three months. JA4015

[Vincent Dep. 111: 15-16]. Bishop Vincent testified that he never considered calling the

Church's Helpline (a 1-800 number that provides Church clergy with guidance regarding abuse

matters) "[b]ecause in what was told to me, it was not child abuse. It wasn't sexual abuse."

JA871-2, 874 [Vincent Dep. 138:15-20; See also 105:21-106:4].

16
 There is no evidence in the record that Bishop Vincent was aware of any previous

misconduct or alleged misconduct by Michael. There is no evidence that Vincent discussed any

allegations of misconduct with President Grow, Bishop Whitcomb, or Bishop Fishel, or any

other Church leader, or that he had any previous discussions with the Jensens. In short, there is

no evidence he could have been part of any kind of conspiracy-and the plaintiffs have not even

named him individually as a defendant.

8. There was no allegation that Michael abused Plaintiff A.B. until after Michael was
arrested. There is no evidence in the record any of the alleged coconspirators
arranged for or were even aware of Michael spending time with the Doe-4 family.

Between 2010 and 2011 , Michael, who was now an adult and living on his own,

sometimes stayed overnight with the Doe-4 family. JA2211-13 [Jane Doe-4 Dep. 403-405]. In

the spring of 2011 , Michael took a week-long trip with the Doe-4 family to South Carolina.

JA2209. The Jensens did not arrange for Michael to stay with the Doe-4 family. JA2214-15

[Jane Doe-4 Dep. 406:16-407:4]. Michael was friends with Jane Doe-4 ' s oldest son. JA10568

[Amended Compl. ~ 102]. Her son is the one who asked Jane Doe-4 if Michael could go on the

trip with them. JA2210 [Jane Doe-4 Dep. 341 :7-9].

After Michael was arrested, A.B. disclosed two instances, likely accidental, where

Michael allegedly touched her briefly over the clothes in the presence of her siblings. JA1866-

67 [CAC interview Tr. 12:8-13:22]; JA818-20 [A.B. Dep. 28:12-29:1, 31:12-23].

Whether A.B. was abused or not, there is no evidence in the record that anyone had any

reason to suspect she had been abused until after Michael was arrested. There is no evidence in

the record that any of the alleged co-conspirators arranged for, suggested, approved, or even

knew about Michael spending time with the Doe-4 family.

17
9. The plaintiffs allege that Michael abused M.S. and T.S., the sons of John and Jane
Doe-5, while living with them. This alleged abuse also did not come to light until
after Michael was arrested.

The LOS Church teaches that every "worthy" young man should serve a proselytizing

mission for the Church. JA3136-3338. Before being allowed to serve as a missionary Michael

was interviewed by Bishop Fishel and President Grow, who each deemed him worthy to serve.

JA2171. Michael almost certainly would have been disqualified from serving a mission if either

Church leader had known of any instances of sexual abuse. JA759.

Michael was assigned to serve in Arizona. JA 720. He was in Arizona when W.T. and

J.T. told their mother about Michael abusing them five years earlier. JA2605 [Jane Doe-1 Dep.

82:2-15]. With the Church' s cooperation, Michael was returned home early from his mission to

face the allegations against him. JA 720.

When Michael returned home, President Grow arranged for him to meet with Don Wrye,

a member of the local public defender's office. JA7257 [D.Wrye Dep. 106:21 -1 07:21]. Wrye,

who was later assigned by the chief public defender to be Michael's defense attorney, met

privately with Michael and advised him to "not talk to anybody about the offense." JA7260-62

[D. Wrye Dep. 110:6 - 111:6; 113:1-7]. Although Wrye happened to be on the high council for

the Martinsburg Stake at the time, his undisputed testimony is that he was acting in his capacity

as an attorney and not as a high council member when he gave this legal advice to Michael.

JA 7259-60 [D. Wrye Dep. I 09:17 - 11 0:5]. The plaintiffs suggest this advice was part of the

conspiracy, but that is not a reasonable inference. Rather, it was simply sound legal advice that

was fully consistent with Michael ' s constitutional rights.

At the time Michael returned to Martinsburg from his mission, Chris Jensen was

deployed overseas. Sandralee did not want Michael living at home without his father there.

18
JA7031, 7006-07 [S.Jensen Dep. 222:8-20; C.Jensen Dep. 503:18-504:8]. Michael lived with

Matthew Whitcomb and his wife for a time after returning home from his mission. Mr.

Whitcomb was the Jensens' former bishop but was also a friend of the Jensen family. JA3629

[M. Whitcomb Dep. 243:5-9].

The plaintiffs assert that Whitcomb (who was no longer a bishop) "approached John Doe-

5 and asked him if Michael could live with the Doe-5s." Aplt. Br. at 16. However, the plaintiffs

tellingly ignore the fact that it was John Doe-S's oldest son, the older brother of Plaintiffs M.S.

and T.S., who suggested that Michael should live with the Doe-5 family. JA2192 [M.S.-2 Dep.

153:24 - 154:2]. Jane Doe-5 also confirmed that she told her oldest son that Michael could live

with the Doe-5 fami ly when her son asked her. JA2187 [Jane Doe-5 Dep. 392:3-23].

Even before Michael went to live with the Doe-5 family, he had spent a lot of time at

their home. JA2185, 1555-56 [Whitcomb Dep. 249:11-250: 10; M.S.-2 Dep. 28:20-23, 59:6-18;

Jane Doe-5 Dep. 392:3-21]. As Whitcomb testified, "Michael being an adult could come and go

as he pleased. He didn't have transportation, and so, people would come to pick him up. The

[Doe-5 family] would come pick him up." JA03631 [Whitcomb Dep. 249:15-21].

There is a disputed issue of fact about whether Michael abused plaintiffs M.S. and T.S.

while living with the Doe-5 family. M.S. testified at his deposition that Michael briefly touched

him "several times" over the clothes while "play wrestling." JA1547-48 [M.S. Dep. 17:1-18:2.]

T.S. testified that Michael touched him twice for "one second" over his clothes while "play

wrestling." JA1647, 1652-3 [T.S. Dep. 18:18-20:9; 23:12-24:6.] Both M.S. and T.S. thought this

touching was accidental until their father, John Doe-5, told them otherwise. JA1547-51, 1649-55

[M.S. Dep. 17:16-18:11; 21 :23-23 :24; T.S. Dep. 20:16-22:1 ; 24:1 0-11; 24:24-25 :2; 36: 11- 18.]

19
 There is no evidence in the record that the Jensens arranged for Michael to stay with the

Doe-5 family or that they made any representations to the Doe-5 family about Michael. There is

no evidence in the record that the co-conspirators engaged in any discussion with each other

about Michael's living arrangements with the Doe-5 family.

II. SUMMARY OF ARGUMENT

This Court should decline to consider this appeal because it falls short of the demanding

standards required for an interlocutory appeal. Allowing this appeal to go forward would

threaten to engulf this Court' s docket with piecemeal appeals, contrary to longstanding rules in

favor of reserving appellate review for final judgments, except in narrow circumstances. The

potential for mischief is especially high in this case because the plaintiffs are abusing Rule 54(b)

in a transparent attempt to appeal evidentiary rulings that are not subject to certification under

Rule 54(b).

If this Court decides to look past these procedural flaws and address the merits, it should

affirm summary judgment for the defendants on the plaintiffs' conspiracy cause of action. At

bottom, this is a negligence case. There is no evidence of an overarching conspiracy to conceal

abuse committed by Michael Jensen, much less to facilitate abuse. And with 11 of their causes

of action still intact, including four for negligence, the plaintiffs can proceed to trial and seek full

restitution for their alleged injuries.

The plaintiffs' interlocutory appeal does not meet the requirements of Rule 54(b).

There are two reasons for this. First, the plaintiffs' Amended Complaint does not present

"more than one claim for relief' as required by Rule 54(b). It presents a single claim for relief

with various theories or causes of action seeking that relief. Each cause of action is based on the

same facts and seeks the same relief. As such, this Court should reject this interlocutory appeal.

20
Second, conspiracy is not a "claim for relief' at all. "A conspiracy is not itself, a tort." Dunn v.

Rockwell, 225 W.Va. 43 , 57, 689 S.E.2d 255, 269 (2009) (quotation marks omitted). It is not a

stand-alone claim, but a theory for extending liability on an underlying claim or cause of action.

Dismissal of a conspiracy cause of action does not satisfy Rule 54(b)' s requirements.

This Court should exercise its discretion to refuse to

consider this interlocutory appeal.

This Court has inherent discretion to refuse to consider an interlocutory appeal. Riffe v.

Armstrong, 197 W.Va. 626, 638, 477 S.E.2d 535, 547 (1996). There are several reasons for this

Court to exercise that discretion and refuse to consider this appeal. First, there is "substantial

overlap" between the plaintiffs' conspiracy cause of action and the causes of action that remain

pending below. Province v. Province, 196 W. Va. 473, 480 n.l4, 473 S.E.2d 894, 901 n.l4

(1996).

Second, the plaintiffs' remaining claims seek the same relief based on the same facts.

Because of that, if the plaintiffs prevail on one of their remaining causes of action, they are likely

to obtain all the relief they seek. And because conspiracy requires an underlying tort, if the

plaintiffs lose on their remaining causes of action, their conspiracy cause of action becomes

moot.

Third, the plaintiffs are using this appeal primarily as a vehicle to challenge evidentiary

rulings. The majority of the plaintiffs' 80-page brief is dedicated to challenging evidentiary

issues, which are not final and not subject to appeal under Rule 54(b).

Fourth, there are several motions in limine still pending before the circuit court that relate

to the evidence that the plaintiffs bring before this Court on appeal. This appeal is premature

because it is so tied up with the evidentiary rulings that have been decided, and which are subject

to modification, and those that are left to be decided.

21
 Any review of the motions in limine should be limited.

The motions in limine are not before this Court and should not be decided on this appeal.

But even if the plaintiffs are correct that this Court has the right to rule on in limine rulings on a

Rule 54(b) appeal, even by the plaintiffs' own reasoning, such review is limited. First, the Court

should review the in limine rulings only to the extent they impact the outcome of the summary

judgment ruling on the conspiracy cause of action. Second, the in limine rulings are subject to

review only for abuse of discretion. The plaintiffs' argument that in limine rulings that impact

summary judgment rulings are subject to de novo review is contrary to the law.

The circuit court's in limine rulings were not an abuse of discretion.

(1) The circuit court did not abuse its discretion by excluding evidence of Michael 's

juvenile adjudication in Utah because the misconduct was too "dissimilar" to the misconduct that

the plaintiffs complain of. This was not an impermissible "fact finding" as the plaintiffs contend,

but a routine application of the factors of Rule 403 which finds support in many similar rulings

affirmed by this Court, as the cases discussed below show. (2) The circuit court did not abuse

its discretion by excluding the SBRA. The plaintiffs attempt to use the SBRA to show notice of

its contents. But the undisputed facts show that neither the Jensens nor the Church defendants

were aware of its contents. Plus, if Michael's misconduct in Provo is excluded because it is too

dissimilar to the misconduct the plaintiffs complain of, then the SBRA is subsumed by that

ruling. (3) The circuit court did not abuse its discretion by excluding evidence of the Juliana

Menendez incident because the conduct was also too dissimilar to the misconduct that the

plaintiffs complain of. (4) The circuit court did not abuse its discretion in excluding the

plaintiffs' speculative and scurrilous allegations that the Jensen's daughter, R.J. exhibited "signs

of abuse." There is no evidence in the record that R.J. was ever abused by anyone. The

22
plaintiffs' own expert conceded that she could not say that R.J. was abused. And the "signs" are

explained by R.J. 's developmental disability.

The plaintiffs allege a conspiracy to commit negligence, which is not actionable.

Civil conspiracy is a means of expanding liability for an intentional tort beyond the

perpetrator to those who conspired with the perpetrator. The conspirators must have intended the

harm that resulted from the conspiracy. A conspiracy to be negligent is not actionable. Mallamo

v. Town of Rivesville, 197 W. Va. 616, 624, 477 S.E.2d 525, 533 (1996). The plaintiffs'

"conspiracy of silence" theory is a negligent-failure-to-warn claim dressed up as a conspiracy

claim. The plaintiffs' conspiracy theory is legally deficient, even if they could prove that there

was a conspiracy of silence.

The plaintiffs' conspiracy cause of action is precisely the type of speculative

and unsupported claim that summary judgment was made for.

Failure to satisfy a single element of a claim is fatal. The plaintiffs' cannot satisfy any of

the elements of a claim for conspiracy. The plaintiffs' allegation that the conspiracy began in

Utah in 2004 when the Jensens conspired with the Church to fix the outcome of Michael's

juvenile proceedings is based on pure speculation and conjecture. Most of the alleged

conspiratorial actions taken by the Church defendants were taken without knowledge of any

previous wrongdoing by Michael. Most of the abuse that occurred went unknown to anyone

until after Michael was arrested, so there was almost nothing to conspire to be silent about. A

key part of the plaintiffs' conspiracy claim is the alleged 2006 or 2007 high council meeting and

the aftermath in which President Grow allegedly asked UD-1 to "spy" (the plaintiffs' inaccurate

term) on Chris Jensen. Even if this evidence were admissible, it is contrary to the plaintiffs'

theory that the Jensens were part of a conspiracy. They obviously did not agree to spy on

themselves as part of a conspiracy to protect the Church or protect their son.

23
 The plaintiffs allege that the Jensens conspired with Michael, the Church defendants, and

UD-1 to "promote and create opportunities for Michael Jensen to babysit and live in homes with

small children .... " JA10602-03 [Am. Complaint~ 204]. The undisputed evidence shows that

the Jensens alleged coconspirators did not even know about, much less "promote and create"

Michael's babysitting opportunities.

This is a negligence case. There is no evidence of a conspiracy. This case should be

remanded to the circuit court for the plaintiffs to try to prove to a jury that the defendants were

negligent. The circuit court did not commit error when it granted summary judgment on the

plaintiffs' conspiracy cause of action.

III. STATEMENT REGARDING ORAL ARGUMENT

Oral argument is not necessary in this case because, as set forth below, the dispositive

issues in this appeal have already been authoritatively decided in prior opinions issued by this

Court. However, ifthe Court believes that oral argument is necessary, the Court should schedule

argument under Rule 19 because any assignment of error by the plaintiffs involves only the

application of settled law.

IV. ARGUMENT

A. The plaintiffs' interlocutory appeal does not meet the requirements of Rule 54(b).

This interlocutory appeal does not meet the requirements of Rule 54(b) for two reasons :

First, the plaintiffs' complaint does not present "more than one claim for relief' as required by

Rule 54(b). It presents a single claim for relief with various theories or causes of action seeking

that relief. Second, even if the plaintiffs' various causes of action were considered separate

claims for relief, conspiracy itself is not an independent "claim" but merely a means of extending

liability for an underlying claim.

24
 1. This Court reviews de novo whether an interlocutory appeal meets the
requirements of Rule 54(b ).

In Syllabus Point 1 of Province v. Province, 196 W.Va. 473, 473 S .E.2d 894 (1996), this

Court explained the two-prong test for determining whether a 54(b) certification is correct:

First, we scrutinize de novo the circuit court's evaluation of the interrelationship

of the claims, in order to decide whether the circuit court completely disposed of
one or more claims, which is a prerequisite for an appeal under this rule. As to
the second prong of the inquiry under the rule-whether there is any just reason
for delay-this Court accords the circuit court's determination considerably more
deference than its first-prong determination. The circuit court's assessment that
there is "no just reason for delay" will not be disturbed unless the circuit court's
conclusion was clearly unreasonable, because the task of balancing the
contending factors is peculiarly one for the trial judge, who can explore all the
facets ofthe case.

In short, under Rule 54(b) this Court reviews de novo whether the orders at issue addressing

Plaintiffs' conspiracy cause of action completely disposed of an independent "claim for relief."

2. The certified orders did not completely dispose of an independent "claim for
relief."

a. The plaintiffs' Amended Complaint presents only a single claim for

relief.

The relevant part of Rule 54(b) reads: "When more than one claim for relief is presented

in an action, whether as a claim, counterclaim, cross-claim, or third-party claim ... the court may

direct the entry of a final judgment as to one or more but fewer than all of the claims .... "

W. Va. R. Civ. P. 54(b) (emphasis added). "[W]hat exactly is a ' claim for relief"? Samaad v.

City of Dallas, 940 F.2d 925, 930 (5th Cir. 1991).9 Courts have suggested two ways to answer

9
See Jack Walters & Sons v. Morton Bldg., 737 F.2d 698, 701-02 (7th Cir. 1984) ("the meaning that the draftsmen
intended ' claim for relief to bear is not clear"); Page v. Preisser, 585 F.2d 336, 339 (8th Cir. 1978) ("Courts have
struggled in attempting to delineate a precise definition of ' claim' for purposes ofRule 54(b).").

25
this question. Under either answer, the plaintiffs' Amended Complaint only presents one claim

for relief.

Some courts hold that separate causes of action are not separate claims when they are

based on the same facts. The facts might support separate causes of action for battery and

intentional infliction of emotional distress, for example, but because they are based on the same

facts, there would only be one claim for relief:

The word "claim" in Rule 54(b) refers to a set of facts giving rise to legal rights in
the claimant, not to legal theories of recovery based upon those facts. Rule 54(b)
was originally adopted in view of the wide scope and possible content of the
newly created "civil action" in order to avoid the possible injustice of a delay in
judgment of a distinctly separate claim to await adjudication of the entire case.

CMAX. Inc. v. Drewry Photocolor Corp., 295 F.2d 695, 697 (9th Cir. 1961) (internal quotation

marks omitted). See also Little Caesar Enters. Inc. v. Smith, 916 F. Supp. 662, 665 (E.D. Mich.

1996) ("Under Rule 54(b), an individual 'claim' is defined by a common aggregate of operative

facts which give rise to the claimant's legal rights, irrespective of the theories of liability asserted

or damages alleged."). One reason to focus on the facts is "to spare the court of appeals from

having to keep relearning the facts of a case on successive appeals." Jack Walters & Sons, 737

F.2d at 702. Thus, "if the facts underlying different claims are different, the claims are separate

for Rule 54(b) purposes." Id. This Court has expressed precisely the concern that underlies the

same-facts test:

The case load of this Court has grown faster than any other component of the West
Virginia judiciary. A more liberal construction of Rule 54(b) has a tremendous
potential to increase our caseload still more rapidly, because of the rule's natural
tendencies to multiply appeals in a single case. This case is a good example: even
if we were to decide each of the issues raised in the present appeal, we are quite
likely to have to decide one or more additional appeals in this case in the future.
Although it might be easier to decide each appeal in a series of multiple appeals in
the same case than would be an appeal from a final judgment disposing of the
entire lawsuit, the greater simplicity will usually be outweighed by the burden on

26
 this Court of having to reacquaint itself again and again with at least the basic
facts of the case. Thus, in reviewing disputed or questionable Rule 54(b)
certifications, we will keep in mind the purpose and practical implications of the
rule.

Province, 196 at 480, 473 S.E.2d at 90 I.

"Other courts have rejected this fact-bound test and have focused upon the possibility of

separate recoveries." Samaad, 940 F.2d at 931. And in at least one case, this Court applied the

separate-recovery test: "Claims are separable when there is more than one possible recovery, or

if different sorts of relief are sought. When either of these circumstances exists, claims are

separately enforceable and subject to Rule 54(b) certification even if they arise out of a single

transaction or occurrence." Province, 196 W.Va. at 479, 473 S.E.2d at 900 (internal citations

and quotation marks omitted, emphasis added). Thus, a claim for "monetary damages" is

"distinguishable from [a] claim for partial rescission both in scope and objective" and therefore

the final resolution of one "permits review under Rule 54(b)." St. Luke's United Methodist

Church v. CNG Development Co., 222 W.Va. 185, 188 n.14, 663 S.E.2d 639,642 n.14 (2008).

Under this test, dismissal of a cause of action that seeks the same recovery as the other

causes of action in the complaint, especially when based on the same facts, does not qualify for

interlocutory review under Rule 54(b). A plaintiff who has "alternative legal theories" that all

lead to the same recovery "has only a single claim for relief for purposes of Rule 54(b)."

Samaad, 940 F.2d at 931 (internal quotation marks and brackets omitted). See also McNellis v.

Merchants Nat. Bank & Trust Co. of Syracuse, 3 85 F .2d 916, 918 (2d Cir. 1967) ("Here,

although the complaint stated two ' causes of action,' there was but one ' claim for relief under

27
the federal rules .... "). 10

There are good reasons for this. If a plaintiff has several theories that all seek the same

relief, the dismissal of one should not be immediately appealable because the plaintiff may

obtain the same relief through his remaining theories, and that would obviate the need for an

appeal. Given the way complaints are often pleaded, with every possible theory of recovery

included, this Court would be exceptionally busy if an interlocutory appeal were permitted every

time a cause of action was rejected.

Among courts that apply the same-facts test and the separate-recovery test there is

agreement that "a claimant who presents a number of alternative legal theories, but whose

recovery is limited to only one of them, has only a single claim of relief for purposes of Rule

54(b). " Id. at 931 (internal quotation marks and brackets omitted).

No matter which test is applied in this case, the conclusion is the same: The plaintiffs'

Amended Complaint presents only one "claim for relief. " The plaintiffs pleaded eight causes of

action against the Jensens: five negligence causes of action, along with causes of action for

fraud, intentional infliction of emotional distress, and civil conspiracy, all seeking precisely the

same relief based on the same injuries arising from the same facts . Only two of those theories

have been dismissed-one of the negligence causes of action (which the plaintiffs did not

appeal) and the conspiracy cause of action. The plaintiffs have six remaining avenues to recover

10
This Court has previously observed that, although the language of the W.Va. R. Civ. P. 54(b) is identical to its
federal counterpart, "this Court has not interpreted the rule as strictly as the federal courts" because " (t]he right of
appeal to a federal circuit court is absolute; under our system, it is not. The consequence of this difference is that we
can be less restrictive in interpreting the finality of an order, since upon preliminary review of the application fo r
appeal we may reject it as being without merit." Durm v. Heck' s Inc., 184 W.Va. 562, 566, 401 S.E.2d 908, 912
(1991), quoting Parsons v. Consolidated Gas supply Corp., 163 W.Va. 464,469, 256 S.E.2d 758, 761 (1979). With
the 20 I 0 changes to the West Virginia Rules of Appellate Procedure, this no longer holds true as our appellate
system now parallels the federal appellate system.

28
precisely what they seek through their conspiracy claim. Their request for punitive damages is

also still pending.

In short, the plaintiffs have pleaded a single claim for relief based on different theories of

recovery arising out of the same facts. The plaintiffs' conspiracy theory has been rejected, but

their "claim for relief' survives. Because the plaintiffs' conspiracy cause of action is not a

separate and independent "claim for relief," it does not qualify for interlocutory appeal under

Rule 54(b).

b. Civil conspiracy is not a "claim for relief."

The plaintiffs' interlocutory appeal does not meet the requirements of Rule 54(b) for

another reason: civil conspiracy is not a claim for relief at all. "A conspiracy is not itself, a

tort." Dunn v. Rockwell, 225 W. Va. 43, 57, 689 S.E.2d 255, 267 (2009) (quotation marks

omitted). Indeed, the plaintiffs have previously acknowledged that "civil conspiracy is primarily

a legal doctrine concerning the apportionment of liability, and is not a tort in its own right."

JA4429 [Pls' Opp. to Church Defs' MSJ on Conspiracy at 2].

This Court has made clear that:

A civil conspiracy is not a per se, stand-alone cause of action; it is instead a legal
doctrine under which liability for a tort may be imposed on people who did not
actually commit a tort themselves but who shared a common plan for its
commission with the actual perpetrator(s).

Syl. Pt. 9, Dunn. Thus, while judgment on a claim for relief may be certified as final, "(c]ivil

conspiracy is not, by itself, a claim for relief." McPheters v. Maile, 64 P.3d 317, 321 (Idaho

2003). This appears to be an uncontroversial and widely-held view. 11

11
See Deeter v. Second Nature Therapeutic Program, LLC, 42 F. Supp. 3d 450, 463 (E.D.N.Y. 2014) ("It is
ax iomatic that civil conspiracy cannot be alleged as a separate claim because New York law does not recognize civil
conspiracy as an independent tort."); Lauter v. Anoufrieva, 642 F. Supp. 2d 1060, 1098 (C.D. Cal. 2009) ("under
California law civil conspiracy does not constitute a separate claim"); Hodge v. D.C. Hous. Fin. Agency, 1993 WL

29
 Rule 54(b) applies when "more than one claim for relief' is presented. Conspiracy is not

a separate claim for relief but merely a theory of apportioning liability for underlying torts. For

that reason also, the plaintiffs' interlocutory appeal should be rejected.

3. The circuit court's rationale for concluding that there was "no just reason
for delay" was "clearly unreasonable."

The circuit court offered two reasons why there was "no just reason for delay." First,

immediate appeal would "maximize[e] the chance that this lengthy and complex case is tried

only once .... " JA34-35. Second, the circuit court expressed concerns about victims of sexual

abuse having to testify more than once. JA35. Neither of these reasons support the conclusion

that there was no just reason for delaying this appeal.

B. This Court should exercise its discretion to refuse to consider the appeal.

Even if this appeal meets the requirements of Rule 54(b), this Court has discretion to

decline to consider it. As this Court has observed:

Upon the appeal of a final order dismissing fewer than all of the parties or fewer
than all the claims in a civil action, this Court, on the motion of any party or sua
sponte, may elect to defer consideration of the appeal until an appeal is taken
from the order terminating the entire action or the time for the appeal of the
terminating order expires.

Riffe v. Armstrong, 197 W.Va. 626,638,477 S.E.2d 535,547 (1996). The Court should use that

discretion to reject this interlocutory appeal for several reasons.

433605, at *2 (D.D.C. Oct. 15, 1993) ("There is no separate claim for civil conspiracy ...."); Bentz v. Fischer, 2012
WL 1880616, at *2 (C.D. Ill. May 22, 20 12) ("Plaintiffs' allegations regarding a conspiracy to prevent him from
obtaining medical care is not a separate claim, but is instead a different theory to recover on the same claim.");
Schmidt v. Bassett Furniture Indus., 2009 WL 3380354, at* 11 (E. D. Wis. Oct. 20, 2009) ("a civil conspiracy claim
is not an independent cause of action, but is only the mechanism for subjecting co-conspirators to liability when one
of their members committed a tortious act"); In re Trilegiant Corp .. Inc., II F. Supp. 3d 132, 146 (D. Conn. 2014)
("[T]here is no independent claim of civil conspiracy" under Connecticut law.); Malone v. Kantner, 2015 WL
5156861, at *4 (D. Neb. Sept. 2, 20 15) ("civil conspiracy is not itself an independent claim for relief in Nebraska");
Koch v. Royal Wine Merchants. Ltd., 907 F. Supp. 2d 1332, 1346 (S.D. Fla. 2012) ("a civil conspiracy is not a
separate or independent tort but is a vehicle for imputing the tortious actions of one co-conspirator to another")
(internal quotation marks omitted).

30
 First, as noted above, the plaintiffs have several remaining avenues to seek the same

relief they are seeking through their conspiracy claim. This Court has explained that one reason

to reject a Rule 54(b) appeal is where "the claims that have been disposed of and the

unadjudicated claims" have "substantial overlap .... " Province, 196 W. Va. at 480 n.l4, 473

S.E.2d at 90 1 n.14. That is precisely the case here. There is substantial overlap because the

plaintiffs have to prevail on an underlying tort to prevail on their conspiracy claim. Dunn, 225

W.Va. at 56, 689 S.E.2d at 268 ("civil conspiracy" is a "combination to commit a tort").

Second, the plaintiffs' conspiracy claim is redundant in another sense. If the plaintiffs

prevail on any of their remaining causes of action, they will likely obtain the relief they are

seeking, which will make their conspiracy claim moot. And if the plaintiffs lose on their

remaining causes of action, their conspiracy claim will be moot because it requires that they

prevail on an underlying tort. Certification under Rule 54(b) "should be granted only if there

exists some danger of hardship or injustice through delay that would be alleviated by immediate

appeal." Province, 196 W. Va. at 479, 473 S.E.2d at 900. Because the plaintiffs have several

remaining avenues of obtaining the same recovery-better avenues, frankly-rejecting this

appeal will not cause them any hardship or injustice.

Third, the plaintiffs are using this appeal primarily as a vehicle to challenge evidentiary

rulings that are not subject to interlocutory appeal. An order granting a motion in limine "is

simply an evidentiary pretrial ruling regarding admissibility of [evidence].... As such, the

resulting order is not a final judgment ... . [I]t does not conclude proceedings on a claim raised in

the suit, nor does it release a party from all or part of the suit." Vaughan v. Greater Huntington

Park & Recreation Dist. , 223 W .Va. 583, 588, 678 S.E.2d 316, 321 (2009). The greater part of

31
the plaintiffs' brief is devoted to challenging evidentiary rulings, not the conspiracy ruling. Rule

54(b) should not be allowed to be used as a vehicle for appealing evidentiary rulings.

Finally, this appeal is premature because it is so tied up with the circuit court' s

evidentiary rulings, and those rulings are subject to be revisited or revised based on what occurs

at trial. "The circumstances justifying an in limine ruling often will change at trial. Problems

that can be treated with some confidence in context are often very difficult to solve before other

pieces of the puzzle have been assembled." Tennant v. Marion Health Care Foundation. Inc. ,

194 W. Va. 97, 112-13, 115, 459 S.E.2d 374, 389-90, 392 (1995). Additionally, waiting until

after trial to review evidentiary rulings "minimiz[es] appellate interference, ensuring the role of

the appellate court will be one of review rather than intervention" and protects "the importance

of the harmless error doctrine by prohibiting review until an appellate court can determine

whether a claimed trial error was harmless .... " Vaughan, 223 W.Va. at 587-88, 678 S.E. 2d at

320-21 (internal quotation marks, brackets, and citations omitted). There are several motions in

limine still pending. If the circuit court grants those motions, the plaintiffs' conspiracy claim

would be further weakened. That is one more reason why this Court should not review the

conspiracy ruling until after final judgment.

" [A]n appellate court ought to usually have before it all of the controversy that was

brought to the court below." Riffe, 197 W. Va. at 637, 477 S.E.2d at 546. "[T]his Court greatly

favors having before it all matters in controversy when reviewing the issues raised before it." Id.

at 638, 477 S.E.2d at 547. At trial, the plaintiffs will either obtain the recovery they seek by

prevailing on one of their other theories, in which case their conspiracy theory would be moot; or

they will lose on their other theories, in which case their conspiracy theory would also be moot.

32
Thus, even if the plaintiffs' conspiracy theory was properly certified under Rule 54(b), this Court

should exercise its discretion to refuse to consider this piecemeal appeal.

C. Any review of the motions in limine should be limited.

The plaintiffs' brief argues for full review of the in limine rulings and that the review

should be de novo. The circuit court's orders on the motions in limine are not before this Court

at all. But even if they are before the Court, they are only here insofar as they determine the

outcome of the conspiracy cause of action-which is the vehicle that brought this case to the

Court. And they are plainly subject to review only for abuse of discretion.

1. This Court should not review the in limine rulings except to the extent they
impact the outcome of the circuit court's order granting summary judgment
with respect to the alleged conspiracy.

Evidentiary rulings are not independently subject to appeal under Rule 54(b). Plaintiffs

do not contend otherwise. In Vaughan, supra, the circuit court granted a motion in limine

excluding crucial evidence relating to damages, and a motion for partial summary judgment

rejecting an affirmative defense. Despite express certification under Rule 54(b ), this Court

rejected the certification as improper. "The order granting the motion in limine is simply an

evidentiary pretrial ruling regarding admissibility of testimony related to the issue of damages ....

As such, the resulting order is not a final judgment .... " 12 223 W.Va. at 588, 678 S.E. 2d at 321.

The plaintiffs rely on Riffe, supra, wherein this Court stated: "Where an appeal is

properly obtained from an appealable decree either final or interlocutory, such appeal will bring

with it for review all preceding non-appealable decrees or orders from which have arisen any of

the errors complained of in the decree appealed from, no matter how long they may have been

12
See also In re Fischel, 557 F.2d 209, 213 (9th Cir.l977) (no jurisdiction to review interlocutory appeal from
denial of motion to strike evidence); Gardner v. Westinghouse Broadcasting. Co., 559 F.2d 209,212 (3d Cir. l977)
("Evidentiary rulings ... can be critically important but they are not the proper subject of an interlocutory appeal.").

33
rendered before the appeal was taken." 197 W.Va. at 638, 477 S.E.2d at 547. The actual

holding in Riffe does not allow interlocutory appellate review of evidentiary rulings, even if

those rulings resulted in error in granting a motion for summary judgment-as the plaintiffs

attempt here.

But even if Riffe does allow interlocutory review of associated evidentiary rulings, as the

plaintiffs contend, the plaintiffs still take it further than their own reasoning allows. As the

plaintiffs read the case, Riffe would allow interlocutory review only insofar as "the errors

complained of in the decree appealed from" resulted from error in the evidentiary rulings. The

only cause of action before this Court is conspiracy. The evidentiary rulings would be

appealable, as the plaintiffs use Riffe, only if an error in the exclusion of evidence resulted in the

error in dismissing the conspiracy cause of action.

It follows that the relevance or importance of the excluded evidence to the plaintiffs'

other causes of action is not before the Court. The plaintiffs spend pages arguing that the

excluded evidence is relevant to their causes of action for negligence, fraud, intentional infliction

of emotional distress, and punitive damages. Aplt. Br. at 31-36. This Court should simply

ignore those arguments because those causes of action are not before this Court.

Also, if this Court concludes that the circuit court did not err in granting summary

judgment on the conspiracy cause of action, it should not review the in limine rulings. Even if

the plaintiffs' interpretation of Riffe is correct, the in limine rulings are properly before the Court

only if erroneous evidentiary rulings caused the circuit court to incorrectly dismiss the

conspiracy cause of action.

And even if this Court concludes that the circuit court did err in granting summary

judgment on conspiracy it should still review the in limine rulings only to the extent an error in

34
those rulings resulted in error in the conspiracy ruling. The Court could theoretically conclude,

for example, that there are disputed issues of fact that should have precluded summary judgment

on the conspiracy claim, but that the exclusion of the Utah juvenile records, or of the "signs of

abuse" allegedly exhibited by R.J., did not result in that error. In that case, the Court should not

review those rulings.

Any review of the in limine rulings-if the Court considers them at all-should be

limited according to these principles.

2. The in limine rulings are subject to review only for abuse of discretion.

If the Court does consider the in limine rulings, the abuse-of-discretion standard applies.

"[R]ulings on motions in limine lie within the trial court's discretion. Our function on appeal is

limited to the inquiry as to whether the trial court acted in a way that was so arbitrary and

irrational that it can be said to have abused its discretion." Wells v. Key Communications, LLC,

226 W.Va. 547, 550, 703 S.E.2d 518, 521 (2010) (internal quotation marks, ellipses, and citation

omitted).

The plaintiffs cite no authority for the assertion that a motion in limine that results in the

exclusion of evidence, which in tum results in summary judgment, should be reviewed de novo.

Aplt. Br. at 24. That is not the law. The plaintiffs cite Daniel v. Stevens, 183 W. Va. 95, I 04

n.l2, 394 S.E.2d 79, 88 n.l2 (1990), for the simple proposition that, unlike summary judgment

rulings, in limine rulings are "ordinarily" not dispositive. But sometimes the exclusion of

evidence will result in a dispositive ruling. And that was, in fact, the case in Daniel. "[I]n this

particular case the exclusion of the evidence in question did have the effect of virtually

eliminating the appellant's defense . .. ." Id. And this Court approved of that outcome.

The plaintiffs cite other cases which stand for the proposition that a motion in limine is

not the proper vehicle for challenging a substantive claim or defense, and should not be used to

35
resolve factual disputes. See Aplt. Br. at 26. There is no disagreement on that point. But that is

not what the trial court did here. The in limine motions did not target whole claims or defenses,

each rather narrowly targeted specific pieces of evidence or evidentiary claims. 13

The plaintiffs argue that the circuit court committed legal error when it said that one

reason for excluding this evidence was to avoid wasting time. Aplt. Br. at 23. This argument is

puzzling because one of the express factors for excluding evidence under Rule 403 is to avoid

"wasting time." W.Va. R. Evid. 403. "Evidence may be excluded under Rule 403 of the West

Virginia Rules of Evidence where the offered evidence would necessarily prolong the trial and it

has slight probative value." Skaggs v. Elk Run Coal Co., Inc., 198 W.Va. 51, 64-65,479 S.E.2d

561 , 574-75 (1996). In Skaggs, this Court approved the exclusion of certain evidence after

explaining that the circuit court did not abuse its discretion in concluding that it was "too remote

in time" to justify the inference the plaintiff wanted and did not justify the "investment of trial

time needed to explore the facts." 14 Id.

The trial court did not commit legal error in its application of Rule 403, and therefore its

rulings on the motions in limine are subject to review only for abuse of discretion.

Under the abuse of discretion standard, we will not disturb a circuit court's
decision unless the circuit court makes a clear error of judgment or exceeds the
bound of permissible choices in the circumstances .... Where the law commits a
determination to a trial judge and his discretion is exercised with judicial balance,
the decision should not be overruled unless the reviewing court is actuated, not by
a desire to reach a different result, but by a firm conviction that an abuse of
discretion has been committed.

13It should be noted that, while the Jensens only filed one motion in limine on their own behalf, they joined in ten of
the motions in limine that were filed by the Church defendants. JA8711.
14 The plaintiffs cite United States v. Siegel, 536 F.3d 306 (4th Cir. 2008), to support their argument that "waste of
time" is not a valid basis for excluding evidence. But in Siegel, the court explained that the trial court had abused its
discretion in excluding evidence solely to save time because the evidence was "relevant, admissible, and highly
probative" and prosecutors in criminal cases have a great deal of discretion in how to present their cases. I d. at 320-
21.

36
Wells, 226 W.Va. at 551, 703 S.E.2d at 522 (brackets, quotation marks, citations, and ellipses

omitted). Determinations of relevance, prejudice, and probativeness, in particular, are within the

trial court's discretion. Skaggs, 198 W.Va. at 65, 479 S.E.2d at 575 (" When the trial court

already has balanced prejudice and probativeness in making an evidentiary ruling, this Court is

especially reluctant to intervene.").

It is with these principles in mind that the Court should look at the specific evidentiary

rulings challenged by the plaintiffs.

3. The circuit court did not abuse its discretion by excluding evidence of
Michael's misconduct in Provo because it was too "dissimilar" from the
conduct the plaintiffs complain of.

The Jensens moved for exclusion of the records of Michael 's juvenile court proceedings

in Utah. JA8649-8710. The circuit court granted the motion because Michael's misconduct in

Utah-briefly groping two same-age female classmates over the clothes at school-bore little

resemblance to the misconduct the plaintiffs complain of-the sexual abuse of small children:

Due to the dissimilarity of the conduct in the Utah case to the abuse allegations
here, the Court finds that the Utah case has very limited probative value as to the
issue of notice in this case. The Court finds that the low probative value of this
evidence is substantially outweighed by a danger of wasting time and undue
delay.

JA25-26. 15

15
It is true that the Jensens' motion in limine was based primarily on how the documents were procured by the
plaintiffs. Utah law prohibited the release of juvenile court records to the plaintiffs. In fact, the plaintiffs' counsel
filed a motion in Utah to obtain Michael's juvenile records, which was summarily denied by the Utah court, a fact
that they failed to disclose to the Berkeley County Circuit Court. The plaintiffs went through a West Virginia law
enforcement officer, Corporal Eshbaugh, and asked him to procure the records. Utah law allows such records to be
shared with law enforcement officers from another jurisdiction, but only for "law enforcement purposes." Michael
had already been convicted and was in jail and there was no ongoing investigation. It is clear that Corporal
Eshbaugh asked for the records only so he could give them to the plaintiffs. Once Eshbaugh had the records, the
plaintiffs subpoenaed them from him, but failed to serve that subpoena on the defendants. In denying an earlier
motion to quash the subpoena that the plaintiffs had issued to Eshbaugh, the circuit court said that it could not
" unring the bell" with respect to how the records were disclosed, but commented that the plaintiffs' process
"created[d) the appearance that there was a concerted effort to circumvent review by an appropriate court."

37
 The plaintiffs argue that the trial court's conclusion that the misconduct was "dissimilar"

and therefore not probative was an "impermissible factual finding ...." Aplt. Br. at 30. To the

contrary, this is precisely the type of reasoning that Rule 403 requires and that this Court has

affirmed and conducted itself on many occasions.

In Skaggs, supra, for example, the plaintiff sued his employer for employment

discrimination based on his physical disability. The employer said the plaintiff was fired

because of his poor job performance. The plaintiff argued that the trial court erred by excluding

evidence of other vacant jobs that could have been offered to him. "The plaintiff attempted to

admit the evidence of the vacant positions to prove the defendant's hostility towards him and to

show he was not treated consistently with the defendant's alleged policy of giving preference to

in-house employees." 198 W.Va. at 65, 479 S.E.2d at 575 . This Court explained that this claim

to relevance was "not untenable." Id. But this was not a factual dispute off limits to the trial

court. Rather, it was a question of relevance. As this Court explained: "[T]hat decision is

entirely a matter of relevancy (as opposed to materiality) and is committed primarily to the trial

court's discretion." ld. "The pertinent inquiry is not whether we would have ruled the same way

but, rather, whether any reasonable judge would have agreed with the trial court." ld.

Just as these were not impermissible factual findings, the trial court in this case did not go

astray when it concluded that Michael's misconduct in Utah in 2004 was too dissimilar from the

conduct the plaintiffs complain of to be relevant or have sufficient probative value to justify the

time it would take at trial to get into all the issues it would raise. That conclusion is subject to

JA10507. The Discovery Commissioner remarked during oral argument on the motion to quash that "the process of
the obtaining of the records in this case relating to Mr. Jensen did not pass the stink test." JA10505 .
In ruling on the Jensens' motion in limine, the Circuit Court also held that the information contained in the Utah
juvenile records "should remain confidential and inadmissible absent an order from the appropriate Utah court
authorizing its release." JA25-26.

38
review only for abuse of discretion, and the plaintiffs have not shown that the circuit court

abused its discretion.

Similarly, in Syllabus Point 2 of McKenzie v. Carroll Int' l Corp., 216 W.Va. 686, 610

S.E.2d 341 (2004), this Court upheld a trial court's "fact dependent" conclusion that incidents of

discrimination were "too dissimilar" to be relevant. Prior incidents of discrimination must be

" relevant to the type of employment discrimination the plaintiff has alleged." "Incidents that are

too remote in time or too dissimilar from a plaintiff's situation are not relevant." ld. at 691-92,

610 S.E.2d at 346-47 (quotation marks omitted, emphasis added). The court noted that this

determination is "fact dependent" but expressed no concern with a trial court finding that an

earlier act of discrimination was too dissimilar to be relevant.

And in Wells, supra, this Court expressly sanctioned such "fact finding. " In Wells, the

plaintiff wanted to present testimony from another employee who was a member of the same

protected class and who was discharged on the same day as the plaintiff. Applying an abuse-of-

discretion standard, this court held: "(U]pon review of the record in its entirety, we find that the

record supports the circuit court's fact finding decision that the two discharges were 'too

dissimilar' to be relevant .. .. " 226 W.Va. at 552, 703 S.E.2d at 523 (emphasis added).

Nor is this principle limited to employment discrimination cases. In Collins v. Bennett,

199 W.Va. 624, 486 S.E.2d 793 (1997), the plaintiff sued the defendant for battery, and the

plaintiff sought to introduce two previous instances of violent conduct by the defendant. This

Court held that the trial court did not abuse its discretion in excluding the evidence. "Given the

distance in time as well as the difference in location, of this other incident evidence from the

incident in issue in the present case, and its potential for unfair prejudice, this Court cannot

39
conclude that ... the circuit judge abused his discretion in refusing to allow admission of that

evidence." Id. at 628, 486 S.E.2d at 797.

In this case, the trial court did not engage in improper fact finding when it determined

that 13-year-old Michael ' s misconduct with same-age classmates in Utah had limited probative

value to his alleged sexual abuse of primarily small boys years later in West Virginia under

different circumstances. While it is perhaps conceivable that another court might have reached a

different conclusion, that is not the issue. Skaggs, 198 W.Va. at 65, 479 S.E.2d at 575. The trial

court's conclusion is not irrational or arbitrary or clearly in error.

The plaintiffs' other arguments do not show that the circuit court abused its discretion.

The plaintiffs assert that Michael's misconduct with same-age classmates in 2004 in Utah is

relevant because "both of the Church' s experts admitted that an adolescent with two prior sex

offenses should not be babysitting for young children." Aplt. Br. at 31. This is not so. The

Church 's standard-of-care expert, Monica Applewhite, testified:

Q. In your opinion, is it important that known sex offenders not babysit for
young children?
[Church Counsel]; Object to the form.
A. In my opinion, I don't believe that known sex offenders should be
babysitters.

JA2710.

The question said nothing about an adolescent who gropes same-age classmates, and Dr.

Applewhite explained that she would not consider a 13-year-old under such circumstances a sex

offender:

Q. Well, Mr. -Michael Jensen, once he pled guilty to those sex offenses in
Provo in 2005 .. . was a known sex offender, correct?
[Objections]

40
 A. I work with juveniles who sexually offend, and we usually don't use that
kind of terminology about children who commit sexual offenses. So to
say "known" I think, is a word that - that implies something about the
knowledge that people have. And then to also call him a sex offender
when he committed those offenses when he was 13 , I think is -is - is just
a lot to say about a child who committed those offenses at that time.
JA2714. And, in fact, Michael's conduct did not qualify him as a "sex offender" under Utah

law. In 2005, an individual was deemed a sex offender only if he or she had been co11victed of

certain sex offenses. Because an adjudication by a juvenile court is not a criminal conviction

(see Utah Code Ann. 76-3a-117) the state's sex offender statute did not apply. 16 See also Utah

Code Ann. 76-2-301 ("A person is not criminally responsible for conduct performed before he

reaches the age of 14 years."). As Dr. Applewhite observed, Michael Jensen was 13 years old in

November and December of 2004 when the incidents in Provo occurred.

Chris Yannelli, the Utah County prosecutor, is the other expert cited by the plaintiffs.

Like Dr. Applewhite, all Mr. Yannelli said was that sex offenders should not babysit children.

After mentioning that he had two children, he was asked:

Q. Did you ever hire a babysitter who had a prior sex offense?
A. I hope not.
Q. Because that's not someone you would want babysitting your kids; is that
correct?
A. Correct.

JA2746. Yannelli also explained, however, that based on his experience he believed Michael

"was a risk to same-age peers. " JA2747. "He was 13 at the time, and the two girls that were

16
Even subsequent amendments to Utah law which made the state' s sex offender statute applicable to certain
juvenile adjudications would not apply to Michael Jensen' s 2005 juvenile adjudication because those amendments
applied only to minors who were confmed for more than 30 days as a result of their offense. See Utah Code Ann.
77-27-21.5(l)(f)(vi) (2006).

41
involved in the case that we prosecuted were 12 and 13," so similar conduct with same-age girls

is what "you needed to be concerned about." 17 JA2747.

The plaintiffs also point to "authoritative literature" that supposedly says "that sex

offenders more often than not re-offend with victims of different typologies, not just the same

age or gender .... " Aplt. Br. at 34. Again, as noted above, Michael was not a "sex offender"

based on his juvenile adjudications in Utah. The plaintiffs use that term loosely without actually

tying it back to this "authoritative literature," which in fact says nothing about teenage boys who

grope teenage girls. JA3799-3954. One of the studies, for example, is about adult male Catholic

priests who sexually abuse children and says nothing about teenage boys who grope teenage

girls. JA3799-3950. 18

The plaintiffs likewise argue that "the SBRA contains ample evidence refuting the court's

conclusion that the Provo offenses were 'too dissimilar' to be relevant .... " Aplt. Br. at 34.

Undisputed evidence demonstrates that the Jensens never saw the SBRA. JA943-4 [C Yannelli

Dep. 321: 13-322:2). See infra IV.C.4. If anything, the SBRA actually affirms the trial court's

conclusion that Michael's conduct was too dissimilar to conclude anything about his risk to

young children. First, the SBRA concludes that Michael was a "low-to-moderate" risk to

reoffend with "same-age" peers. JA1937-45. Second, it concludes that he was not a risk to his

prepubescent sisters. JA1937-45. Third, it says nothing at all about his risk to boys-and most

of the minor plaintiffs were young boys when they had contact with Michael. 19 JA1937-45.

17
ln any event, expert testimony is beside the point. The question before the trial court was not whether experts
would have recognized whether or not Michael's offense with same-age girls made him a danger to offend with very
young boys and girls. The question is whether the average reasonable person should have foreseen that M ichael
might sexually abuse small chi ldren if given the opportunity to babysit them.
18
There is a pending motion in limine to exclude any reference to the study. JA8649-87 10.
19
The plaintiffs also point to the proffered testimony of their own expert, Eli Newberger. But Newberger also says
nothing about Michael's risk to small children. He simply proffers that " it was foreseeable, predictable, and a

42
Fairly read, the SBRA, which none of the defendants ever saw before this lawsuit, says nothing

that makes Michael's misconduct with same-age girls similar enough to his later sexual abuse of

small children to be relevant to the plaintiffs' conspiracy cause of action.

The plaintiffs next argue that Michael ' s misconduct with same-age girls in 2004 "cannot

be viewed in isolation" but must be "viewed as part of the available and mounting evidence that

Michael posed a dangerous threat." Aplt. Br. at 36. This is hyperbole in its highest form.

Michael's conduct with his female classmates exceeded legal boundaries, but there was nothing

at all unusual about his interest in same-age girls-<:ertainly nothing that suggested he might be

interested sexually in small boys and girls. Not surprisingly, the prosecutors indicated that cases

involving teenage boys groping teenage girls were referred to their office frequently. JA2758 [C

Yannelli Dep. 83 :2-19].

In short, a thirteen-year-old boy committed offenses that were not atypical for a male of

his age, and the juvenile justice system in Utah handled the situation. But there is no evidence

that anyone (including the juvenile court and prosecutors who deal with such cases on a regular

basis) thought that Michael was a probable pedophile because he groped same-age classmates of

the opposite sex. In the plaintiffs' world, every teenage boy who gropes a female classmate

should be labeled a sex offender and marked with a scarlet letter; his church should announce

from the pulpit that he is dangerous; and his parents should assume that he is a pedophile. It was

hardly unreasonable for the circuit court to reject the plaintiffs' nonsensical position.

In any case, the only question before this Court (if it is even before this Court) is whether

the trial court abused its discretion in excluding the evidence. And if reasonable people can

disagree, then the trial court did not abuse its discretion. Clearly reasonable people can disagree.

substantial risk that Michael Jensen would abuse again if given the opportunity." JA 1849. That is not dissimilar to
what the SBRA said-Michael posed a low to moderate risk to offend again with same age peers if he did not
receive treatment.

43
 In addition, the circuit court was right to be concerned about the time it would take at trial

to explore this issue. It is revealing that the plaintiffs spend 25 of 77 pages discussing Michael's

misconduct in Utah. Aplt. Br. at 29-54. If this evidence were admitted, witnesses would have to

testify about the relevant provisions of Utah law, whether the outcome of the juvenile

proceedings was typical or unusual, the technicalities regarding sexual behavior risk

assessments, the influence of the Mormon Church in Utah, the (ir)relevance of the Church

positions held by Michael's grandfather, the religious affiliation of the prosecutors and the judge

and any motivation they might have for "fixing" the outcome of the case, among other things.

And the Court must remember that this evidentiary issue is before this Court only insofar

as an error in the exclusion of this evidence resulted in error in the dismissal of the conspiracy

cause of action. The plaintiffs' theory that the conspiracy began in 2004 when the Jensens and

the Church supposedly conspired to influence the outcome of Michael's juvenile proceedings is

based on irrational speculation-not reasonable inferences. The admission of this evidence

would not change the fact that there is no evidence that any conspiracy formed in 2004 (or later).

4. The circuit court did not abuse its discretion by excluding the SBRA.

If the Court does not reverse the trial court's conclusion that Michael's misconduct with

same-age girls in 2004 is "too dissimilar" to be admissible, it does not need to address whether

the trial court abused its discretion by excluding the SBRA and other documents related to

Michael ' s juvenile proceedings. The exclusion of all evidence and argument of Michael's

juvenile proceedings because the conduct was too dissimilar swallows these other rulings. Ifthe

Court were to conclude, for some reason, however, that the trial court abused its discretion in

excluding the juvenile proceedings as a whole, then it must consider whether individual parts

44
should still be excluded including: (1) the SBRA and (2) juvenile records that were improperly

obtained.

As part of his juvenile proceedings, and as authorized by Utah law, Michael was ordered

to undergo a "sexual behavior risk assessment." JA9267-303. Chris Jensen initially brought

Michael to his appointment with the evaluator, but Chris was not allowed to participate.

JA1937-45. When the appointment was rescheduled, Sandralee took Michael to the appointment

and she did not participate in the evaluation. JA1937-45. The plaintiffs did not ask Chris or

Sandralee Jensen whether they ever saw the SBRA or whether its contents were disclosed or

described to them. The only record on this point is the proffer from counsel that the Jensens, if

asked, would have testified that they never saw it and did not know what it said. JA286-87.

Chris Yannelli testified as an expert on Utah juvenile court proceedings and said that SBRAs are

confidential and cannot be disclosed. JA943-44. [C. Yannelli Dep. 321:13-322:2]. There is no

evidence in the record that the Church defendants were even aware of the existence of the

SBRA

Throughout this litigation, the plaintiffs have pointed to statements in the SBRA (taken

out of context) in an attempt to show that the Jensens were on notice as early as 2004 that

Michael was a threat to commit future sexual offenses against small children. The trial court

excluded the SBRA because "there is no evidence that the Jensen parents or Church leaders ever

saw the SBRA," and its "low probative value .. . is substantially outweighed by its potential for

confusion the issues, undue delay, and wasting time." JA23-24.

Utah law prohibited disclosure of the SBRA to the Jensens. Rule 4-202.03 of the Utah

Judicial Council Rules of Judicial Administration governs access to certain records. The rules

for a "private court record," a "protected court order," and a "juvenile court social order"

45
expressly allow access to "the parent or guardian of the subject of the record if the subject is an

unemancipated minor." !d. 4-202.03(3)(B), (4)(B) and (5). But the rule specific to "sex

behavior risk assessments" states that they "may be accessed only by" a specific list of people -

and parents are conspicuously absent from the list. This wording is clearly deliberate. While the

rule states with regard to other types of documents that "[t]he following may access a private

court record," "the following may access a protected court record," and "the following may

access a juvenile court social record," when it comes to sex behavior risk assessments, the rule

states that they "may be accessed only by." Even the subject of the SBRA is prohibited from

accessing it unless he is "age 18 or over." !d. 4-202.03(5)(M)(i). The cover sheet of the SBRA

states in bold capital letters: CONFIDENTIAL: FOR PROFESSIONAL USE ONLY,

UNAUTHORIZED USE, RELEASE OR DUPLICATION BY RECIPIENT IS PROHIBITED.

JA1937-45 . And if his parents could not lawfully obtain access to Michael's SBRA, the

plaintiffs' counsel certainly skirted Utah law by obtaining access through means that the

Discovery Commissioner found not to "pass the stink test. " JA10505.

The plaintiffs ask the Court to " infer that the Jensens either saw or had knowledge of the

SERA' s contents" because " [b]oth parents participated in the evaluation process." Aplt. Br. at

48. But as the SBRA itself makes clear, they were actually prohibited from participating.

JA1937-45. Their "participation" consisted of no more than driving Michael to the

appointments. JA1937-45.

The plaintiffs also note that "[t]he SBRA was produced to Michael ' s lawyer, who was

retained by the Jensens and with whom they communicated regularly." JA289. The plaintiffs

speculate that Michael ' s lawyer must have given a copy to the Jensens or at least told them what

was in it. But that is speculation, not a reasonable inference, because the law prohibited him

46
from sharing it with the Jensens. JA282. In fact, it is plainly unreasonable to infer that

Michael's lawyer would knowingly violate Utah law by sharing a copy of the SBRA with the

Jensens. The only reasonable inference is that the attorney would comply with the law.20

In any case, the SBRA does not say that Michael posed a risk to very small children. Its

conclusion was that, without therapy, he posed a "moderate risk" to "peer-aged" girls. It is

simply not probative of the question of notice in this case. For all these reasons, the trial court

did not abuse its discretion when it excluded the SBRA.

5. The circuit court did not abuse its discretion by excluding evidence of the
Juliana Menendez incident.

The circuit court excluded evidence of an incident involving Michael Jensen and Juliana

Menendez, a peer-aged female, that occurred in a movie theater in Martinsburg in 2007, because

the incident "has very limited probative value in this case as to notice that Michael Jensen was a

danger to young children." JA00022. The circuit court did not abuse its discretion when it did

so. Ms. Menendez's deposition in May 2014 was the first time that the Jensens (and, in fact,

anyone else) learned that the incident had been anything but consensual. And, regardless of

whether the conduct was consensual and regardless of what Sandralee or Chris Jensen knew

about the particulars, the incident would not act as a predictor that Michael might abuse young

children. This was certainly not an unreasonable conclusion.

20
It appears that Sandralee and Michael met twice with Michael 's lawyer in December 2004. JA07783-07784.
Michael was not evaluated for the SBRA until January II , 2005. The report was not completed until January 23,
2005. The report was faxed by the psychologist's office to the probation officer on the morning of January 24,
2005, the day of the hearing where Michael was adjudicated, with a handwritten note on the cover sheet to "please
give to Michael's attorney." The fax transmittal notation indicates that the fax transmission started at 8:42a.m. and
finished at 8:46a.m. The hearing started at 9:00a.m. Thus, even if he were standing next to the probation officer's
fax machine waiting for his copy of the report, Michael's attorney would have first seen the SBRA approximately
fourteen minutes before the January 24, 2005 hearing was to commence. JA07789, 07798-99. In any event, it
would have been impossible for Michael's lawyer to share the report or even discuss its contents with Sandralee at
either of their two December meetings because the report did not even exist yet, and he would have had little to no
time to discuss the report with the Jensens prior to the January 24, 2005 hearing even if he intended to violate Utah
law and disclose the report's contents.

47
 The plaintiffs try to argue the importance of this evidence by noting that Sandralee

connected the Provo incident to the Menendez incident in her own mind. Appellants Br. 37. But

they are omitting important context. With respect to the connection between Provo and the

Menendez incident, Sandralee explained that her "linking" had nothing to do with some concern

that Michael Jensen posed a risk to young children. Rather, as a religious woman, she was

concerned with Michael's pre-marital displays of sexuality. JA08430, 08432-33 [S. Jensen Dep.

138:6-21 , 212:14-213:1[; see also JA10166-68 [S. Jensen Dep. 445: 15-447:4] (disapproving of

Michael making out with a teenage girl because "you're not encouraging that kind of activity

[,ejspecially in our religion, where we believe that, you know, you wait for those kind of things

until after you're married." (emphasis added)).

6. The circuit court did not abuse its discretion in excluding the plaintiffs'
scurrilous and offensive speculation about the Jensens' daughter, R.J.,
showing "signs of abuse."

In a desperate effort to show that the Jensens should have foreseen that Michael posed a

threat of sexually abusing small children, the plaintiffs have dragged R.J., the Jensens '

developmentally disabled daughter, into this case and have argued that she was exhibiting "signs

of abuse" that should have been recognized. Aplt. Br. at 8.

The plaintiffs' original Complaint alleged that Chris and Sandralee Jensen learned that

Michael was abusing his sister K.J. "in 2006 or 2007 at the latest." JA10557 [Complaint ~ 74].

The Amended Complaint made the same allegations, although it removed the specific reference

to K.J. JA10558-59 [Amended Complaint~ 78]. Both the original Complaint and the Amended

Complaint also alleged that a stake high council meeting in 2007 discussed "Michael Jensen's

sexual abuses of his younger sibling" JA10535-36 [Amended Complaint ~ 3].

48
 Multiple depositions, including K.J .'s deposition of April 9, 2014, established that an

incident did occur between Michael and K.J. but that it actually occurred in the summer of 201 0.

JA07764-65, 11000-11039, 10962-10969. As noted above, this incident resulted in Michael

being told by his parents to leave the Jensen home and, for all practical purposes, he never

returned.

By mid-April 2014, the discovery conducted in this lawsuit had placed the plaintiffs '

lawyers in a dilemma. Their allegation that the 2007 high council meeting discussed Michael ' s

"abuses of his younger sibling" had been premised on a beliefthat Michael ' s "abuse" ofK.J. had

occurred "in 2006 or 2007 at the latest," and that it had been the subject of the high council' s

alleged discussion. 21 The actual evidence from multiple sources (including K.J.) placed the

incident involving Michael Jensen and K.J. in 2010, three years after the alleged high council

meeting (and after the alleged acts of abuse for four of the six plaintiff families in this case). The

high council could not possibly have discussed Michael's "abuse" ofK.J. in 2007, because it had

not yet occurred.

The plaintiffs attempted to solve this dilemma by turning their attention to Michael 's

other younger sister, R.J . But there was a problem. There is no evidence that R.J. was ever

abused-either before or after this alleged high council meeting. So the plaintiffs came up with

a theory that R.J. was exhibiting "signs" of being a victim of abuse-which apparently her

parents and others must have noticed and recognized. Taking it to the next step, the plaintiffs

21
Michael Jensen was deposed in this case on April 2 , 2014. Michael invoked his Fifth Amendment right to refuse
to answer most of the substantive questions posed to him by the plaintiffs' counsel during his deposition.
Nonetheless, wh ile counsel questioned Michael about alleged abuse of K.J., not a single question was asked about
R.J. JAI0970-10999 [Rule 35 Response Exhibit D] . Sandralee and Chris Jensen were deposed on April 15, 2014
and April 16,2014, respectively. Both were asked extensive questions about the incident between Michael and K.J.,
however, neither Chris nor Sandralee were asked any questions about any alleged abuse of R.J . by Michael. JA
I 1000- 11039 [Rule 35 Response Exhibits E, F and G] .

49
theorized that Jensens must have assumed that it was Michael that was abusing R.J. and further,

that the Jensens and others decided to conceal that abuse. To support this newly-minted theory,

the plaintiffs point to two things. First, the plaintiffs say that R.J. is "overly affectionate" (Aplt.

Br. at 8), although they never explain what that means. Second, the plaintiffs point to a single

incident when R.J. was approximately six years old when R.J. took her skirt off on a dare from

some other children.

In speculating that R.J. was abused, the plaintiffs simply ignore the undisputed evidence

that R.J. "suffers from developmental disabilities and has a limited full scale I.Q. of 68."

JA1125-67 [Rec. Order~ 8 (Jan. 27, 2015) adopted by Order (Feb. 17, 2015)]; see also JA6641

[L. Holtzapple Dep. 91:8-12]; JA5974 [B.Jensen Dep. 221 :3-8]; JA6965 ; [B.P.Jensen Dep.

150:12-153:8]. The record also demonstrates that R.J. has had "difficulties maturing" which is

"particularly apparent in her social skills as she tries to interact with other people." JA6965-66

[B.P .Jensen Dep. 150: 12-151: I]. Her disabilities sometimes lead her to be "socially

inappropriate." JA7009 [Clarice Jensen Dep. 22:7-22].

Even so, the plaintiffs can point to only one instance of R.J. engaging in socially

inappropriate behavior. This incident with R.J. did not come to light until a Church member

named Deanna Christensen wrote a letter to the court for Michael ' s sentencing in 2013. JA2701-

03. Christensen was not present, but heard about the incident from another woman, Rachel

Mitchell, who also was not present. JA11051 [D.Christensen Dep. 12:13-13 :7 ; 17:8-18]. The

only witness to the incident who has testified was Ms. Mitchell' s son, J.M., who was just five

years old at the time. JAil 063 [ J.M. Dep. 9: 13-1 7]. J.M. testified that "all the kids in the room

were daring her to take - I think her dress off - and she did it, and we all giggled because we

so
were kids and we didn' t know any better. And then an adult came into the room and stopped it."

JA 11063 [J. M. Dep. 11:13-17].

In sum, this developmentally disabled child is "overly affectionate" - whatever that

means - and engaged in one act of socially inappropriate behavior. From that, the plaintiffs

would ask the jury to engage in what could only be rank speculation to conclude that the Jensens

knew that Michael was a dangerous pedophile.

Further, there is no evidence in the record that any alleged co-conspirator of the Jensens

was even aware of this single incident involving R.J. J.M.'s mother testified that she did not tell

the bishop about it because "I don't think he needed to know. I think the parents need to know,

but it' s not the bishop's responsibility, the actions of people's children." JA3085 [R. Mitchell

Dep. 31:7-15]. Additionally, there is no evidence in the record that the Jensens knew enough

about child sexual abuse to know what the "signs" are. Perhaps most important, there is no

evidence in the record that R.J. has ever been sexually abused by anyone. The plaintiffs' expert,

Kathleen Faller, said she could not testify to a reasonable degree of medical or professional

certainty that R.J. has ever been sexually abused. JA6913-14 [K.Faller Dep. 309:20-310:11] .

And Faller admitted that R.J. ' s developmental disabilities "may explain a lack of judgment, a

lack ofunderstanding of socially acceptable behavior." JA3590 [K. Faller Dep. 306:6-16] .

The circuit court excluded references to the alleged abuse of R.J. because there is "no

direct evidence that RJ was actually abused," no evidence if she was abused that "Michael

Jensen was the abuser," and no evidence that anyone was aware that she had been abused. JA23.

The plaintiffs' rank speculation about R.J. is precisely the type of evidence that should be

excluded in limine. The circuit court did not abuse its discretion in doing so.

51
 Further, even if this evidence were wrongly excluded, it could not possibly have resulted

in error in the circuit court's ruling on the conspiracy motions, and therefore is not reviewable on

a 54(b) appeal of the conspiracy ruling. There is no evidence in the record that the Church

defendants or UD-1 were aware of R.J .' s "overly affectionate" nature or the single instance of

inappropriate behavior, and no evidence in the record of any discussions among the alleged

conspirators to ignore or cover up this "evidence" of abuse. This "evidence" lends no support to

the plaintiffs' conspiracy claim.

D. Conspirators must intend the harm that results from the conspiracy. A conspiracy
to commit negligence is not actionable. The plaintiffs' conspiracy claim is really a
negligent failure-to-warn claim.

Even if the Court decides not to dismiss the appeal, the circuit court's order granting

summary judgment to the Jensens and other defendants with respect to Plaintiffs' claim of civil

conspiracy was correct and should be affirmed. Civil conspiracy is not itself an independent tort,

but a means of imposing liability "on people who did not actually commit a tort themselves but

who shared a common plan for its commission with the actual perpetrator(s)." Syl. Pt. 9, Dunn,

supra, See also Id. Syl. Pt. 8 ("A conspiracy is not itself, a tort. It is the tort, and each tort, not

the conspiracy, that is actionable."); State ex rei. Myers v. Wood, 154 W. Va. 431, 442, 175

S.E.2d 637, 645 (1970) (conspiracy is "a combination to commit a tort"). In this case, the

plaintiffs have continually glossed over a critical question: What tort did the defendants conspire

to commit? If the underlying tort is the sexual abuse, then the plaintiffs have to prove that the

"conspiratorial objective" was for Michael to sexually abuse them. Ash v. Allstate Ins. Co., No.

12-1533, 2013 WL 5676774, at *5 (W.Va. Oct. 18, 2013). At first, Plaintiffs' complaint alleged

just that: that the defendants conspired "for the unlawful purpose of facilitating Michael Jensen's

criminal and tortious acts against the minor Plaintiffs .... " JA1 0602 [Amended Compl. ~ 203

52
(emphasis added)]. A conspiracy to commit sexual battery would, indeed, be an actionable tort.

And what a horrific conspiracy that would be. But there is no evidence to support the absurd and

offensive idea that the Jensens or the Church defendants conspired with Michael to sexually

abuse children.

The plaintiffs' appeal appears to focus less on their allegation that the conspirators

facilitated sexual abuse and more on the allegation that they conspired to cover up and conceal

abuse-a "conspiracy of silence." Aplt. Br. at 62. This is nothing more than an attempt to dress

up a negligent-failure-to-warn claim as a conspiracy claim. There is no evidence of this alleged

conspiracy either, but the Court does not even need to delve into the evidence to reject it. The

law simply does not recognize such a conspiracy.

"[C)onspiracy is an intentional act, not a negligent one." Mallamo v. Town of Rivesville,

197 W.Va. 616, 624, 477 S.E.2d 525, 533 (1996). See Bennett v. Skyline Corp., 52 F. Supp. 3d

796, 814 (N.D.W.Va. 2014) ("By its very definition ... a civil conspiracy claim does not sound

in negligence."). The conspirators must intend to cause the injury that results from their

conspiracy. "The 'gist of a civil conspiracy' is the injury that is intended to be caused." Triplex

Communications. Inc. v . Riley, 900 S.W.2d 716, 719 (Tex. 1995). It is not enough that the

defendants "intend to engage in the conduct that resulted in the injury," they must have intended

the injury. Id. at 719.

"Merely proving the joint intent to engage in conduct that results in an injury is not

sufficient to establish a cause of action for civil conspiracy as each participant in a conspiracy

must have the specific intent to injure the plaintiff." 15A C.J.C. Conspiracy 15. "[C)ivil

conspiracy is an intentional tort requiring a specific intent to accomplish the contemplated

wrong." 16 Am. Jur. 2d Conspiracy 51. Cf Qwest Communications Corp. v. Free

53
Conferencing Com., 2014 WL 5782543, *13 (8th Cir. 2014) ("The court is unaware of any court

decision that explicitly adopts a general intent requirement for civil conspiracy claims."). See

also Basic Chems., Inc. v. Benson, 251 N. W.2d 220, 232-33 (Iowa 1977) ("The principal

element of conspiracy is an agreement or understanding between two or more persons to effect a

wrong or injury upon another.").

The plaintiffs allege that the conspirators were negligent. And there appears to be

unanimous agreement that there is no such thing as a conspiracy to be negligent. See William v.

The AES Corp., 28 F. Supp. 3d 553, 574 (E.D. Va. 20 14) ("Plaintiffs fail to state an actionable

claim for any underlying tort other than ordinary negligence. Thus, Plaintiffs' civil conspiracy

claim fai ls."); Witcher v. Reid, 70 Va. 415, 2006 WL 1494675, *4 (Va. Cir. Ct. 2006) ("Because

negligence by definition is not an intentional wrong, one cannot agree or conspire to be

negligent."); Wooley v. Lucksinger, 14 So.3d 311 , 424 (La. App. 2008) ("Because negligence by

definition is not an intentional wrong, one cannot agree or conspire to be negligent."); Tri v.

J.T.T., 162 S.W.3d 552, 557 (Tex. 2005) ("We have consistently held that there cannot be a civil

conspiracy to be negligent."); Rogers v. Furlow, 699 F. Supp. 672, 675 (N.D. Ill. 1988) ("What

the plaintiff suggest is a conspiracy to commit negligence, a paradox at best.").22

22
Thus, courts have rejected conspiracy claims against cigarette manufacturers who failed to warn about the dangers
of smoking. In Sackman v. Liggett Group. Inc., 965 F. Supp. 391 (E.D.N.Y. 1997), the plaintiff brought a
conspiracy claim for personal injuries caused by smoking against parties who "conspired" to conceal information
regarding the health risks of smoking. The court rejected their claim, at least insofar as it was based on negligence
as the underlying tort accomplished by the conspiracy. " [B]ecause a claim of conspiracy requires a showing of
intentional conduct, there can hardly be a conspiracy to commit negligence." Id. at 395. See also Sonnenreich v.
Philip Morris. Inc., 929 F. Supp. 416, 419 (S.D. Fla. 1996) (recognizing in the context of a lawsuit against tobacco
manufacturers that "[l]ogic and case law dictate that conspiracy to commit negligence is a nonsequitur"); Wright v.
Brooke Group Ltd., 1 14 F. Supp. 2d 797, 836 (N.D. Iowa 2000) (rejecting conspiracy claim against cigarette
manufacturer; "because conspiracy requires an agreement to commit a wrong, there can hardly be a conspiracy to be
negligent-that is, to intend to act negligently"); Cresser v. Am. Tobacco Co., 174 Misc. 2d 1, 6, 662 N.Y.S.2d 374,
378 (Sup. Ct. 1997) ("It is clear with respect to civil conspiracy, which is not an independent tort, but is essentially
an agreement to commit a tortious act, the underlying tort must be an intentional one since there can hardly be an
agreement to commit a negligent act.").

54
 The plaintiffs' claim fails because conspiracy requires an underlying intentional tort.

Holding defendants liable for conspiracy extends liability to those who did not actually commit

the intentional tort but who conspired with the tortfeasor who did. Parties can conspire to

commit theft, or to commit battery, or sexual abuse. But a conspiracy to be negligent is

actionable only as negligence, or gross negligence, not as civil conspiracy.

Take a simple example. Assume that a young perpetrator like Michael had disclosed to

his parents that he had sexually abused a small child. To protect him, the perpetrator and his

parents agree to tell no one. The perpetrator promises to never do it again, and his parents

desperately hope he doesn' t. And they don't warn the family next door with a small son who

often visits their home. If their son later abused this neighbor boy, the parents could be held

liable for negligence, and perhaps gross negligence, but not for conspiracy, because they did not

intend for their son to abuse the neighbor boy. The abuse might have resulted from their silence,

but it was not the intent of their silence. The difference is between being aware that something

might happen as a result of your inaction, and actually intending that it happen.

In this case, the plaintiffs allege at worst that the defendants conspired to remain silent-

to not report Michael to authorities or warn others that Michael was dangerous. There is no

evidence of such a conspiracy, but even if there were, it is not an actionable conspiracy. The

plaintiffs' negligence and gross negligence claims remain pending. Those are the appropriate

vehicles for the plaintiffs to seek recovery. The trial court correctly rejected their conspiracy

theory.

55
E. The plaintiffs' conspiracy cause of action is precisely the type of speculative and
unsupported claim that requires summary judgment. The circuit court did not
commit error in granting summary judgment.

Even if the plaintiffs' faulty conspiracy theory is accepted on its own terms, and even all

of the excluded evidence is assumed to have been wrongly excluded, the plaintiffs' conspiracy

cause of action was still properly dismissed. It is based on speculation and unreasonable

inferences. The plaintiffs try to turn the absence of evidence into a virtue: Of course there's no

evidence-it's a conspiracy! But conspiracy causes of action are subject to the same scrutiny

under Rule 56 as other claims are. And in this case the circuit court correctly concluded, based

on the undisputed facts, that there were no genuine issues of material fact and that summary

judgment was appropriate.

The cause of action for conspiracy was dismissed because there is no evidence of a

conspiracy. To even suggest the possibility of a conspiracy, the plaintiffs have to engage in

speculation and conjecture based on unreasonable inferences. 23

23
In deciding the defendants' summary judgment motions, the circ uit court was bound by this Court's prior
summary judgment caselaw, including this Court's directives in Williams v. Precision Coil. Inc., 194 W.Va. 52,
459 S.E.2d 329 (1995), that the evidence illustrating the factual controversy cannot be conjectural or problematic;
that only reasonable inferences from the evidence need be considered by a court; that permissible inferences must be
within the range of reasonable probability; that inferences and opinions must be grounded on more than flights of
fancy, speculations, hunches, intuition, or rumors; that a case must fail if it is so tenuous that it rests merely upon
speculation and conjecture; and that a court need not credit purely conclusory allegations, indulge in speculation, or
draw improbable inferences in resolving a summary judgment motion. See also Jividen v. Law, 194 W. Va. 705,
71 3, 461 S.E.2d 451 , 459 (1995) (While permissible inferences are drawn in the light most favorable to the non-
moving party, such inferences " must at least be reasonably probable."); Crum v. Eguitv Inns, Inc., 224 W. Va. 246,
254, 685 S.E.2d 219, 227 (2009) ("the nonmoving party cannot create a genuine issue of material fact through mere
speculation or building of one inference upon another."). Significantly, this Court also stated in Williams that, "to
withstand the motion, the nonmoving party must show there will be enough competent evidence available at trial to
enable a finding favorable to the nonmoving party .... For example, unsupported speculation is not sufficient to
defeat a summary judgment motion .... If the evidence favoring the nonmoving party is merely colorable or is not
significantly probative, summ ary judgment may be granted . . .. If the factual context renders the nonmoving party's
claim implausible -if the claim simply makes no economic sense- the nonmoving party must come fo rward with
more persuasive evidence to support the claim." 194 W. Va. at 61-62, 459, 459 S.E.2d at 338-39, citations and
internal quotations omitted.

56
 The plaintiffs allege that this conspiracy began in 2004 when Michael groped two same-

age classmates and Chris and Sandralee Jensen turned to the Church to fix the outcome of the

case. Why the Church would do such a thing is beyond comprehension-and the plaintiffs never

offer a reason. And what is the evidence that there was such a conspiracy? Michael's charges

were dropped two levels from felonies to misdemeanors; and that is so unusual, the plaintiffs

say, that there must have been a conspiracy. But the undisputed testimony from the prosecutors

who handled the case is that the outcome was not unusual at all and they did not even speak to

Michael's grandfather (whom the plaintiffs mischaracterize as a high-ranking Church official) or

the bishop who the Jensens supposedly enlisted to fix the outcome. Indeed, both offered

undisputed testimony that the Church has never tried to influence the outcome of a single one of

thousands of cases they have prosecuted. The plaintiffs' conspiracy theory would also require

the juvenile court judge to go along, but the plaintiffs do not dare make that accusation because

there is no evidence at all to support it.

The plaintiffs allege that for the next nine years-from 2004 to 20 13-the Jensens

conspired with various bishops and others (at least two dozen people) to not only conceal abuse

committed by their son, Michael, but to "provide him access to young children" and "facilitate[ ]

his abuse." Aplt. Br. at 62. That is a disgusting accusation for which there is no evidence.

The plaintiffs' also allege a "conspiracy of silence"-a cover-up, as it were, of repeated

instances of sexual abuse by Michael. The reality is, with one disputed exception where the

plaintiffs allege abuse was reported to a bishop in 2008, the Jensens' alleged co-conspirators had

no reason to believe Michael had sexually abused any children and therefore nothing to conspire

to be silent about. It was not until after Michael was arrested in 2012 that it became clear that

there were several victims.

57
 Additionally, a conspiracy requires the left hand to know what the right hand is doing.

The plaintiffs' brief repeatedly makes allegations about what the "Defendants" knew. It is

undisputed, for example, that when the Jensens moved to West Virginia, no one told their new

local Church leaders about Michael's juvenile adjudication in Utah. Yet the plaintiffs simply

assert that "Defendants" knew about the juvenile case. Aplt. Br. at 8. And there is no evidence

that any of the Jensens' alleged co-conspirators knew anything about the Jensens' daughter R.J.

supposedly showing "signs" of having been abused. But the plaintiffs assert that they "should be

free to argue that R.I. ' s troubling behavior added to the body of knowledge such that Defendants

should have taken steps to warn and protect .... " Aplt. Br. at 36 (emphasis added). But only the

Jensens knew about R.I.'s behavior- a single instance of socially inappropriate conduct when

she was approximately 6 years old that the plaintiffs have used to try to drag her into this case.

Repeatedly the plaintiffs lump all of the defendants together. "Defendants knew that Michael

was a repeat sex offender ... and that his youngest sister R.J . was exhibiting accepted signs of

sexual abuse." Aplt. Br. at 36. "Defendants were on notice of the risk posed by Michael ...."

Aplt. Br. at 36-37. "Defendants put a known, repeat sex offender in the homes of families with

young children." Aplt. Br. at 36.

But when the Court looks at what each defendant actually knew, the conspiracy falls

apart. The plaintiffs allege that as part of the conspiracy of silence, the Jensens' new bishop in

West Virginia, Matthew Whitcomb, advanced Michael to the office of a "teacher" in the

Church's Aaronic Priesthood even though "Defendants knew" Michael was a "sex offender" in

Utah. Aplt. Br. at 8. But, in fact, Bishop Whitcomb knew nothing about Michael's juvenile

adjudication in Utah and thus could not have been acting as part of a conspiracy.

58
 In short, the plaintiffs have constructed their conspiracy theory by creating a bucket of

knowledge and pouring into that bucket every bit of information that any of the defendants and

any local Church leader knew-whether it be the Jensens, Bishop Swensen, Bishop Whitcomb,

Bishop Fishel, Bishop Vincent, UD-1, President Grow, or others-and then attributing that

knowledge to all of the defendants individually. The Jensens were the only defendants who

knew about R.J. 's instance of inappropriate behavior and about Michael babysitting P. C. and

about the bruise on her bottom, for example. Yet the plaintiffs attribute that knowledge to all of

the defendants. Aplt. Br. at 9 ("Defendants knew that Michael was a repeat sex offender, his

youngest sister was showing signs of abuse, and he had at least physically abused and terrified a

four-year-old girl [P. C.] while babysitting.") (emphasis added). The plaintiffs then act as though

each defendant conspired to cover up or at least remain silent about these facts- facts of which

they were not aware.

This imputation extends beyond knowledge to actions. The plaintiffs allege that part of

the conspiracy was to "promote and create opportunities for Michael Jensen to babysit and live

in homes with small children .... " JA 10602-03. There is no evidence in the record that any of

the Jensens' alleged co-conspirators arranged, approved, endorsed, or even knew about

Michael ' s babysitting activities. The plaintiffs try to overcome this by imputing the Jensens'

actions to their co-conspirators-specifically to the Church defendants. (The plaintiffs cannot

make any link to UD-1 .) There is no evidence that the Church defendants arranged babysitting,

but the Jensens were "both Church officers," the plaintiffs assert (Aplt. Br. at 9), such that their

knowledge and actions should be imputed to the Church defendants.

But this argument just creates another unconquerable contradiction. The Jensens'

knowledge and actions can only be imputed to the Church if, in fact, they were acting as agents

59
of the Church. (Both the Jensens and the Church say they were not acting as Church agents.)

But if they were acting as agents of the Church then they could not have conspired with the

Church. An agent cannot conspire with his principal. See Cook v. Heck' s Inc., 176 W.Va. 368,

375, 342 S.E.2d 453,460 (1986). And ifthe Jensens were not acting as Church agents, then their

knowledge and actions cannot be imputed to the Church, which means that the Church

defendants could not have been part of a conspiracy to cover up what they did not know, nor did

they have any part in facilitating the babysitting or living arrangements where the abuse

occurred. What the plaintiffs are really suggesting is that the Jensens as Church agents conspired

with the Jensens as individuals. This obviously does not work. And thus the plaintiffs'

conspiracy theory crumbles under the weight of its own contradictions.

1. Required elements of a conspiracy.

In West Virginia, civil conspiracy "'is a combination of two or more persons by

concerted action to accomplish an unlawful purpose or to accomplish some purpose, not in itself

unlawful, by unlawful means. The cause of action is not created by the conspiracy but by the

wrongful acts done by the defendants to the injury of the plaintiff."' Syl. pt. 18, O'Dell v.

Stegall, 226 W.Va 590, 703 S.E.2d 561 (20 10) (quoting Syl. pt. 8, Dunn, supra). "The proponent

of a civil conspiracy claim must produce at least circumstantial evidence that each member of the

alleged conspiracy shared the same conspiratorial objective and mutual agreement." Ash v.

Allstate Ins. Co., No. 12-1533, 2013 WL 5676774, at *5 (W.Va. Oct. 18, 2013). See also Hinkle

v. City of Clarksburg, 81 F.3d 416,423 (4th Cir. 1996) (holding that "conjecture" and a "theory

without proof' will not support a conspiracy claim).

60
 2. There is no evidence of a conspiracy starting in 2004.

The plaintiffs argue that there is "ample evidence" that the alleged conspuacy

commenced in 2004. Aplt. Br. at 63 . To the contrary, there is no evidence of a conspiracy

starting in 2004.

a. The plaintiffs' assertion of a conspiracy to "fix" the outcome of

Michael's juvenile proceedings is based on pure speculation.

The plaintiffs argue that the conspiracy began "in late December 2004, when Chris and

Sandralee Jensen enlisted the Church to influence a criminal prosecution in Provo, Utah against

their son, Michael .... " JA4351. The plaintiffs point to four things to support this alleged

conspiracy: First, Bishop Swensen met with Michael and attended a hearing. Aplt. Br. at 6.

Second, Michael ' s grandfather had held what the plaintiffs characterize as several "high

positions" within the Church, and he met with Michael ' s lawyer and had some involvement in

the case. Aplt. Br. at 6. Third, the outcome of the proceedings was supposedly unusual--overly

favorable to Michael. JA4440. And fourth, years later, Michael supposedly told a friend in West

Virginia that his grandfather "took care of' his problems. JA4371.

But this conspiracy theory immediately collapses. The undisputed evidence is that there

was nothing unusual about the outcome of the case. JA6308-09, JA7267-68, JA7282-84,

JA6315-16. And even ifthe outcome was unusual in some way, there is no evidence that it was

the result of a conspiracy. Also, the undisputed testimony from both of the prosecutors who

handled the case is that they never spoke to Michael ' s grandfather and that during their long

careers no Church leader ever tried to influence the outcome of any case they worked on.

JA6316, JA6338 , JA7433. Further, the plaintiffs' arguments implicate the juvenile court judge

as well (JA4371, JA4373), but there is no evidence in the record of any improper attempt to

persuade the judge to go easy on Michael, nor even the hint of any reason why the judge-who

61
was not a member of the Church-would go along. This leaves only Michael's ambiguous

statement to a friend years later that his grandfather "took care of what needed to be taken care

of." JA4371 , 4386, 4445. Assuming Michael even made this statement, it could be totally

innocuous (no one disputes Michael ' s grandfather met with his attorney and helped Michael

through the process). And it is hardly enough from which to draw a reasonable inference that the

prosecutors and the judge were corrupt enough to go easy on Michael because of some

conspiracy.

b. There is no evidence that Bishop Whitcomb assigned Sandralee

Jensen as the Relief Society president and advanced Michael to the
office of "teacher" as part of a "conspiracy of silence."

Not long after Michael 's juvenile adjudication, the Jensen family moved to West

Virginia. Sandralee Jensen was "almost immediately" asked by Bishop Matthew Whitcomb to

be the Relief Society president of the Mill Creek Ward. JA4378. Chris Jensen was asked by

President Grow to be part of the stake high council. JA4379. And Michael was advanced in the

Church's Aaronic Priesthood from the office of a "deacon" to a "teacher." JA4379. The

plaintiffs have repeatedly argued that these actions were taken in furtherance of the conspiracy. 24

Michael's priesthood advancement, for example, "touted him as a trustworthy and exceptional

member of the Church community, inspiring trust in him by other Church members" in alleged

furtherance of the conspiracy. Aplt. Br. at 1.

24
The plaintiffs argue that the fact that the Martinsburg Church leaders issued and Chris and Sandralee Jensen
accepted callings to serve the Church in their new ward in West Virginia is evidence in support of the alleged
conspiracy. In addition to being illogical and offensive, the plaintiffs' attempt to impose civil liability on the
Jensens for exercising their religious beliefs would run afoul of the First Amendment to the United States
Constitution and Article III, 15 of the Constitution of West Virginia. See also Dixon v. Am. Indus. Leasing Co.,
162 W.Va. 832, 835,253 S.E.2d 150, 153 (1979) ("There was no wrongful act to support the alleged conspiracy if
the act complained of ... was the result of the exercise of an absolute right."); Syl. Pt. 2, Porter v. Mack. 50 W.Va.
581 , 40 S.E. 459 (190 I) ("There can be no conspiracy to do that which is lawful in a lawful manner."); Dun lap v.
Cottman Transmission Sys .. LLC, 287 Va. 207,215, 754 S.E.2d 313 , 317 (2014) ("there can be no conspiracy to do
an act that the law allows." ); Frayer Seed. Inc. v. Centurv 21 Fertilizer & Farm Chemicals, Inc., 5 I Ohio App. 3d
158 , 165 , 555 N.E.2d 654, 661 ( 1988) ("Parties cannot conspire to do that which they are legally entitled to do.").

62
 But there is an incurable problem that the plaintiffs gloss over: these actions were taken

by Bishop Whitcomb who, according to the plaintiffs, had no knowledge at the time of Michael's

juvenile case in Utah. The plaintiffs specifically point out that Bishop Swensen (Michael's Utah

bishop) provided " [n]o warning .. . to other Church leaders .... " JA4375. And Bishop

Whitcomb advanced Michael "without calling Bishop Swensen, as required by Church

procedure." JA4379 . Thus, Bishop Whitcomb's actions could not have been in furtherance of a

"conspiracy of silence" intended to protect Michael or the Church. Further, there is no evidence

of any kind of agreement between the Jensens and Bishop Whitcomb regarding these actions or

any actions that would arguably be in furtherance of the alleged conspiracy. See 15A C.J.S.

Conspiracy 13 ("There must be a preconceived plan. The essence of a conspiracy is an

agreement that demonstrates a meeting of the minds between conspirators. Without a meeting of

the minds, the independent acts of multiple wrongdoers do not amount to a conspiracy.").

c. The defendants did not, as part of the conspiracy, ignore "signs" that
R.J. had been abused

The "conspiracy of silence" continued, the plaintiffs argue, when the Church defendants

ignored or covered up "signs" that Michael's youngest sister, R.J., had been sexually abused.

JA4380; Aplt. Br. at 8. The evidence regarding this has already been explained above. There is

no evidence in the record that R.J. was ever abused by Michael or by anyone else. There is no

evidence in the record that she showed any "signs" of having been abused. There was one

instance of inappropriate social behavior that was the result of her developmental disability. And

none of the alleged conspirators were even aware of this incident except the Jensens. There is no

evidence that R.J.'s "signs" of abuse were concealed or covered up as part of some conspiracy.

63
 d. The Jensens had nothing to do with the alleged 2006/07 high council
meeting and it certainly is not evidence that they were part of a
conspiracy.

The plaintiffs assert that the "conspiracy of silence" continued in 2006-2007 when a

meeting of the stake high council, led by defendant Steven Grow, the stake president, allegedly

discussed in one of their meetings the alleged sexual abuse of Michael by his father, Chris, and

Michael's sexual abuse of one of his younger sisters. After this meeting, President Grow

purportedly asked UD-1 to keep an eye on Chris Jensen and "make sure he's being a good

priesthood holder, good father, a good husband ...." JA11323.

This meeting never happened, and the plaintiffs' hearsay allegation of such a meeting has

been excluded. But even if it did happen, how is it evidence that the Jensens were part of a

conspiracy that included President Grow and UD-1? The plaintiffs argued below that President

Grow "brought [UD-1] into the conspiracy as a spy on his close friend, military buddy and

business partner, Chris Jensen." JA2499 [PI 's Opp. to LDS MSJ Memo on Punitive Damages at

19]. If true, this is evidence of a conspiracy against the Jensens, not a conspiracy of which they

were a part.

This alleged meeting does not show any unlawful purpose or unlawful means tied to the

Jensens; it does not show any evidence of a preconceived plan or concerted action between the

Jensens and the other alleged co-conspirators. To the contrary, it would show the lack of a

common plan and concerted action.

e. There is no evidence that the alleged co-conspirators were aware of

any possible sexual abuse committed by Michael except the possible
abuse of Z.W., purportedly disclosed to the Jensens and Bishop Fishel
in 2008.

The plaintiffs' Amended Complaint alleges that the J ensens, the Church defendants, and

UD-1 "conspired with Michael Jensen .. . [to] cover up incidents of sexual abuse of minors by

64
Michael Jensen" and "prevent disclosure of Michael Jensen's sexual abuse of young children

...." JA I 0602 [Am. Compl. ~ 204]. The conspirators could not cover up incidents of sexual

abuse if they were not aware of them. There is no evidence in the record that the Jensens were

aware of any possible sexual abuse of children by Michael except for (1) Z.W.'s allegation that

Michael abused him, which occurred in 2008, and (2) the incident involving K.J., which

occurred in 20 I 0. 25

And there is no evidence that the Jensens took any affirmative action to conceal or cover

up these incidents, or that they spoke with or reached an agreement with the alleged co-

conspirators to cover up or remain silent. Michael told his mother that Z.W. was simply

confused because the boy had walked in while Michael was using the bathroom. The Jensens

accepted Michael's explanation about Z.W. 26 Z.W.'s own parents chose not to report Z.W.'s

allegations to authorities. It would be unreasonable to draw an inference that they were part of a

conspiracy of silence. Yet that is precisely the inference that the plaintiffs seek against the

Jensens. Even if there were evidence that the Jensens deliberately chose not to report to

authorities to protect Michael, that would not be evidence of a conspiracy because there is no

evidence of an agreement with any co-conspirator or any concerted action. See Dixon v. Am.

Indus. Leasing Co., I62 W.Va. 832, 834, 253 S.E.2d 150, 152 (1979) (civil conspiracy is "a

25 Plaintiffs argue that there is sufficient evidence from which a jury could infer that a conspiracy of silence began in
2004. But the only allegation of any known misconduct by Michael before 2008 is his groping of two same-age
classmates in Utah. Michael was arrested at school and charged with two felonies for that misconduct-a rather
public spectacle that was known and handled by the authorities. And there is no evidence of any agreement or
concerted action to cover up this incident. To be sure, the Jensens did not shout it from the housetops whenever they
had the chance. But an inference of some sweeping conspiracy is unreasonable. A more reasonable inference is that
they hoped Michael had learned his lesson and they just wanted to put the matter behind them.
26 In hindsight, it is easy to be critical of the fact that Sandralee believed her son's explanation about Z. W., but she
obviously did not know then what she knows now. And it is not surprising that a mother would not want to believe
the worst about her own chi ld.

65
combination of two or more persons by concerted action to accomplish an unlawful purpose or to

accomplish some purpose, not in itself unlawful, by unlawful means").

Nor is there any evidence of a conspiracy of silence related to the Jensen's knowledge of

Michael's misconduct with K.J. The Jensens could have said nothing about the incident, but

instead they immediately kicked Michael out of the house, which would have raised questions,

and they spoke to Bishop Vincent and asked him to help Michael. They also told Blanca Keogan

about the incident when the Keogan family agreed to allow Michael to move into their home in

2010. JA02235-02237. There is no evidence that the Jensens took any affirmative action to

conceal or cover up the incident, or that they reached an agreement with anyone or engaged in

any concerted action to conceal or cover up the incident.

As for the alleged co-conspirators, there is no evidence that UD-1 or President Grow

were aware of any sexual abuse committed by Michael, except for the excluded evidence of a

cryptic conversation at a 2006 or 2007 meeting at which the possibility that Michael had abused

one of his sisters was allegedly discussed. But rather than entering into a conspiracy with the

Jensens to cover up this allegation, Grow and UD-1 allegedly reached an agreement to keep an

eye on the Jensens. Thus, even under the plaintiffs' tortured version of the facts of the case,

there is no evidence of any agreement between the Jensens and either President Grow or UD-1 to

conceal or cover up sexual abuse committed by Michael. As noted, Bishop Fishel was allegedly

told about one incident of sexual abuse by Michael against Z.W. He investigated and concluded

that it did not happen. There is no evidence that he and the Jensens entered into an agreement to

conceal or cover up this incident.

In short, different people conceivably knew bits and pieces of alleged misconduct by

Michael, but there is no evidence of some grand scheme to conceal this misconduct-no

66
evidence of any agreement to cover up, not to report, or to prevent disclosure. At most, there

were independent acts of alleged negligence. There is no evidence in the record of any kind of

preconceived plan, an agreement, a common design, or concerted action by the Jensens with

anyone else to "cover up incidents of sexual abuse of minors by Michael Jensen ...." JA1 0602

[Am. Compl. ~ 204].

f. There is no evidence that the Jensens conspired with the alleged co-
conspirators to create opportunities for Michael to babysit.

The plaintiffs' Amended Complaint alleges that the Jensens, the Church defendants, and

UD-1, conspired with Michael to " promote and create opportunities for Michael Jensen to

babysit and live in homes with small children ... ." JA1 0602 [Am. Compl. ~ 204]. Here again,

there is no evidence to support this allegation.

President Grow' s undisputed testimony is that he did not know anything about the fact

that Michael was babysitting children of members of the Martinsburg Stake. JA2161 [Grow

Dep. Vol. 1 at 246]. Likewise, Bishop Fishel's undisputed testimony is that he did not know that

Michael was babysitting children of Church members. JA2168-71 [Fishel Dep. Vol. 1 at 168-69,

230-32.] Matthew Whitcomb was the bishop of the Mill Creek Ward at the time of the

babysitting incident involving P.C., the daughter of John and Jane Doe-6. His testimony that he

"didn't know that [Michael] babysat for other people" is likewise undisputed. JA2182

[Whitcomb Dep. at 128]. There is no evidence in the record that any Church leader had any

knowledge of Michael babysitting - much less that they somehow promoted or created

opportunities for Michael to babysit. There is no evidence of a "preconceived plan" or any

"concerted action" with a "common design or purpose" regarding Michael's babysitting jobs.

There is likewise no evidence in the record that UD-1 was aware of Michael's babysitting

arrangements, or that he conspired with anyone to create opportunities for Michael to babysit.

67
 Nor is there any evidence that the Jensens conspired with the Church defendants or with

UD-1 to "promote and create opportunities for Michael Jensen to live in homes with small

children." JA10602 [Am. Compl. ~ 204.] Significantly, Michael was an adult when the Jensens

kicked him out of the home and when he started to live with other families. The Amended

Complaint does not allege that the Jensens had anything to do with Michael living with the Doe-

S family. JA1 0571 [Am. Compl. ~ 11 0]; and there is no evidence in the record that they did. The

deposition testimony of John Doe-5 , Jane Doe-5, and of their son, confirms that the Jensens did

not ask the Doe-5 family to let Michael live with them. JA2187-92 [John Doe-5 Dep. at 403:15-

24; Jane Doe-5 Dep. at 391:1-2, 393:4-9; M.S. Dep. at 155:7-19]. In fact, their older son, M.S.,

who was Michael ' s friend, testified that it was his idea for Michael to stay at their house.

JA2192 [M.S. Dep. at 153:23-154:2].

The Jensen's undisputed testimony is that they did not know Michael was staying with

the Doe-5 family until after he had already started staying there. JA2185, 2207 [SLJ Dep.

603: 15-604: 11; CJ Dep. at 51 0-11]. There is no evidence that they ever discussed Michael' s

living arrangements with any of the alleged co-conspirators.

There is no evidence that the Jensens conspired with anyone for Michael to spend time or

vacation with the Doe-4 family. JA10568 [Am. Compl. ~ 102-03]. Jane Doe-4 testified that the

Jensens never asked her to allow Michael to stay at her house. JA2213 [Jane Doe-4 Dep. at

405:8-13). Her son's testimony confirms this. JA2218 [J.C. Dep. at 109:20-110:3]. Jane Doe-4

testified that it was her son's idea to take Michael on vacation with them, and that the Jensens

never asked if Michael could accompany them. JA2210, 14 [Jane Doe-4 Dep at 341:7-9;

406:21-407:4]. Michael and Jane Doe-4 's son, J.C. were " [v]ery close" and the undisputed

68
testimony is that that is the reason Michael spent so much time with the family. JA2211, 2911,

10568 [Jane Doe-4 Dep. 403:14; J.C. Dep. 120:6; Am. Compl. ~ 102].

Finally, there is no evidence that any of the alleged co-conspirators had any knowledge of

Michael ' s involvement with the Doe-4 family. And there is not a scintilla of evidence of any

preconceived plan, common design, or concerted action by the alleged co-conspirators to create

opportunities for Michael to spend time with the Doe-4 family.

V. CONCLUSION

For the reasons set forth herein, Respondents Christopher Jensen and Sandralee Jensen

pray that this Court decline to accept this appeal. Alternatively, if the Court sees fit to accept the

appeal the Jensens pray that this Court affirm the rulings of the Circuit Court of Berkeley

County, West Virginia.

CHRISTOPHER JENSEN AND

SANDRALEE JENSEN
By Counsel,

Mark A. Atkinson (WVSB No. 184)

John J. Polak (WVSB No. 2929)
ATKINSON & POLAK, PLLC
BB&T Square, Suite 1300
300 Summers Street
P.O. Box 549
Charleston, WV 25322
(304) 346-5100

69
 CERTIFICATE OF SERVICE

I, John J. Polak, counsel for Respondents Christopher Jensen and Sandralee Jensen,
do hereby certify that service of the "BRIEF ON BEHALF OF RESPONDENTS
CHRISTOPHER JENSEN AND SANDRALEE JENSEN" was made upon the parties listed
below by mailing and emailing a true and exact copy thereof to:

Carl S. Kravitz William J. Powell David J. Williams

Zuckerman Spaeder LLP Jackson Kelly PLLC Stoel Ri ves LLP
1800 M Street, NW, Suite 1000 P.O. Box 1068 201 South Main Street, Suite 1100
Washington, DC 20036-5802 Martinsburg, WV 25402 Salt Lake City. UT 8411 1

Robert P. Fitzsimmons Allen Gardner Joseph R. Ferretti

Fitzsimmons Law Firm PLLC Latham & Watkins LLP Hammer Ferretti & Schiavoni
1609 Warwood Avenue 555 II th Street, NW, Suite I 000 408 West King Street
Wheeling, WV 26003 Washington, DC 20004 Martinsburg, WV 25401

Tim Kosnoff Counsel for Church Defendants Thomas V. Flaherty

Daniel Fasy Flaherty Sensabaugh Bonasso PLLC
Kosnoff Fasy PLLC P.O. Box 3843
520 Pike Street, Suite 1010 Charleston, WV 25338-3843
Seattle, WA 98101
Counsel for Plaintiffs Counsel for Unnamed Defendant-1

and by mailing a tme and exact copy thereof to:

Kenneth LeMaster
Sheriff of Berkeley County, West Virginia
510 South Raleigh Street
Martinsburg, WV 25401

Committee for and on behalf of Christopher Michael Jensen, an incarcerated person

on this 22"d day of July, 2016.

John J. Polak (WVSB No. 2929)