Netflix Inc. and a prominent team of documentary filmmakers are appealing a trial court decision in a defamation lawsuit that attacks their portrayal of a guardianship case as an abuse of an elderly man.
The media defendants include documentary film director and producer Alex Gibney and his company, Jigsaw Productions LLC; the affiliate firm Muddy Waters Productions LLC; Peabody award-winning filmmaker Kyoko Miyake; story producer Sarit G Work; associate producer Samantha Knowles; and researcher Kate Gill.
The plaintiff, Tonya Barina, is the appointed guardian of the estate of Charles Thrash, a retired businessman whose estate was once valued at about $3 million. Barina alleges that after an episode of “Dirty Money” on the subject of guardianships was released, she received hundreds of death threats and threats of bodily harm from all over the world.
In August 2010, a trial court in Bexar County denied the defendants’ motion to dismiss. The 285th Judicial District Judge Cathleen Styker “correctly determined that Barina had established the prima facie case of libel,” counsel for Barina stated in their appellee brief to the Fourth Court of Appeals.
Carl J. Kolb of Austin and Glenn Deadman of San Antonio represent Barina.
Oral argument is scheduled for June 28, according to an order issued Friday.
Rachel F. Strom and Katherine M. Bolger of Davis Wright Tremaine in New York and Laura Lee Prather of Haynes and Boone in Austin represent Netflix and the other defendants.
The media defendants claim in the appellant brief that Barina failed to satisfy her burden under Texas law to establish by “clear and specific evidence” a prima facie case of each essential element of the defamation claim.
The episode reported on the guardianship system in general and on two cases in particular, including In re Guardianship of Thrash.
“Tonya Barina—who is named in the program because she is one of Thrash’s guardians—is displeased with her accurate, albeit unflattering, portrayal,” the media defendants claim. They assert that Barina sidesteps an obligation to identify actionable statements “by simply alleging that the gist of the Program as a whole defames her.”
The episode discusses the Thrash case through the experience of Thrash’s girlfriend, Laura Martinez, her daughter Brittany and their attorney, Philip Ross. Thrash began dating Martinez in 2009 and she moved in with him in 2012. In 2016, Thrash bought a new house and around the same time he signed a new will naming Martinez as the beneficiary.
Thrash’s bank became concerned about the home purchase and numerous transactions involving his business, and alerted the Texas Department of Health and Human Services. The agency filed an application for temporary and permanent guardianship in probate court, and a temporary guardian was appointed in August 2017.
The episode referred to Thrash’s court-appointed attorney ad litem, Ben A. Wallis III, who testified that Thrash was happy living in his home with Martinez and wished only that the guardianship proceedings cease.
At the request of Thrash’s sister, Barina applied to become permanent guardian a few months later and settlement negotiations began between Thrash’s relatives, Thrash and Martinez, according to court documents. Wallis told the court that the principal purpose of the Thrash family’s involvement was to obtain a 50% share of his estate, which he refused.
The parties were at a stalemate throughout 2018, court records show. On Jan. 29, 2019, the court appointed Barina guardian of the Thrash estate and she received a yearly percentage of the estate’s gross income. She closed his business, against his wishes, and moved to sell much of his assets. In addition, the appointed guardian of his person, Mary Werner, removed Thrash from his home to a secret location; he had been by then declared mentally incompetent.
Martinez and her attorney’s efforts to contest the orders have to date been unsuccessful.
Barina alleges the episode was too one-sided and deliberately omitted facts that reflected poorly on Martinez and her attorney. The media defendants’ “sources,” according to court records, showed a “complete disregard for the obligation to be truthful.”
The court found that Ross had carried out a “vexatious litigation campaign” against Thrash and his property; Martinez attempted to claim that she was the wife through a document that was later annulled, and to have the adult children adopted by Thrash.
“To
present Thrash’s story, it features Ross, Laura, and Brittany, who all
were severely sanctioned in the Thrash proceedings for their
‘guardianship exploitation,’ without ever mentioning the sanctions
order,” the Barina brief states. “All of the Ross-Martinez defendants’
pleadings had been stricken by May 19, 2019, a year before the episode
ran.”
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