Opinion issued October 22, 2013.
In The
Court of Appeals For The
First District of Texas ———————————— NO. 01-12-00189-CV ——————————— BETH BRYANT, ATASCOCITA UNITED METHODIST CHURCH AND THE WEEKDAY LEARNING CENTER, Appellants V. S.A.S. AND L.O.S., INDIVIDUALLY AND AS NEXT FRIENDS OF E.R.S. AND E.L.S., THEIR MINOR CHILDREN, Appellees
On Appeal from the 55th District Court Harris County, Texas Trial Court Case No. 2010-41141
OPINION
The Smiths hired sixteen-year-old Morgan Bryant to babysit their children.1
Morgan’s babysitting services were advertised in a paper flyer placed in the
1 “Smith” is a pseudonym. backpacks of the Smiths’ children. After hiring Morgan several times to babysit,
the Smiths learned that Morgan had sexually assaulted their children. The Smiths
reported the crime to the authorities, who pursued criminal charges against
Morgan. Morgan pleaded guilty to felony sexual assault of a child, and the
criminal court assessed twelve years’ incarceration as punishment.
On behalf of themselves and their children, the Smiths sued Morgan, the
Atascocita United Methodist Church, which operated the Weekday Learning
Center, the childcare center itself (collectively, the Church), and Beth Bryant,
Morgan’s mother, who also was a teacher at the childcare center. The jury
returned a verdict in favor of the Smiths. The Smiths’ civil cause of action for
assault and battery against Morgan provides the basis for most of the jury’s
damages award. Morgan appeared at trial solely through his deposition, and he
does not appeal the judgment against him. The Smiths, however, also recovered
damages against Beth Bryant and the Church, on the basis that these defendants
violated the Texas Deceptive Trade Practices Act (DTPA), by: (1) misrepresenting
Morgan’s child care experience; and (2) failing to disclose his psychological
condition at the time the Smiths received the flyer advertising his babysitting
services. This appeal arises from the civil judgment entered on those DTPA
findings in favor of the Smiths and against the Church and Beth Bryant.
2 Beth Bryant and the Church contend that the trial court erred in entering a
judgment against them, because (1) no evidence supports the jury’s findings that
Bryant and the Church’s DTPA violations caused the Smiths’ damages; and (2) in
any event, the DTPA does not afford any recovery for economic or mental anguish
damages that flow from purely personal injury claims. In a cross-appeal, the
Smiths contend that the trial court erred in apportioning its attorney’s fee award.
Following the Texas Supreme Court’s analysis in Doe v. Boys Clubs of Greater
Dallas, 907 S.W.2d 472 (Tex. 1995), we hold that no evidence supports the jury’s
DTPA causation finding against the Church and Beth Bryant; therefore, we reverse
the judgment. In light of our disposition, we need not reach the other issues
presented in this appeal.
Background
I. Facts giving rise to the suit.
In the summer of 2007, the Smiths enrolled their two young sons in the
childcare center. Beth Bryant’s daughter, Kelsey, a twenty-year-old college
student, worked at the center as a teacher and swimming instructor in a summer job
between her junior and senior years of college.
3 Beth Bryant herself spent the first part of the summer of 2007 teaching
Vacation Bible School at the Church. She had five years’ prior experience
working at the childcare center and wished to return to work there. She applied
and, in August, the center rehired her to work as a teacher. Bryant’s class
contained the younger Smith boy. Mrs. Smith developed a warm rapport with
Bryant and appreciated Bryant’s caring interaction with her son.
After Kelsey returned to college in the fall, she asked her mother to circulate
a flyer to school parents to let them know that she would be available for
babysitting during her winter break. The school often circulated flyers that
advertised events and personal services by placing them in the children’s
backpacks. Under the school’s policy, it pre-screened each proposed flyer. If the
school approved the flyer, it charged $20 to circulate it.
In late fall, Beth Bryant circulated an approved flyer offering Kelsey’s
babysitting services. The flyer explained that Kelsey was Bryant’s daughter, that
she had been a “Summer School Fish” teacher at the center, that she was CPR-
certified, and that she would provide references upon request. The Smiths hired
Kelsey to babysit for their sons during the winter break.
Near the end of 2007, Bryant prepared a similar flyer, this time advertising
Morgan’s availability for babysitting services. The flyer read:
4 HELP AROUND THE HOUSE?
(Documented Day Labor)
POSSIBLE BABYSITTER AT YOUR SERVICE
Need someone while WLC is on break for the Holidays?
MORGAN BRYANT
HHS Junior – Eagle Scout – IB Student (College Prep)
16 years old – driver’s license – can provide own transportation
(Beth Bryant’s son – T/Th Bee’s Teacher)
Part-Time WLC Summer School Help
WLC Vacation Bible School Worker
Need someone to help with the kids while you work around the house?
Someone to watch the kids while you shop?
Great companion for your ‘boys’!
Call and arrange for a meeting and see if I can help you out during the holidays!
The childcare center approved Bryant’s flyer and gave permission to her to
circulate it. The flyer went home in the children’s backpacks, along with other
materials that the school distributed.
The Smiths’ experience with Kelsey’s babysitting services was a good one;
they were disappointed to learn that she would not be available after she returned
to college at the beginning of January. During Mrs. Smith’s conversation with
Bryant about Kelsey’s imminent return to college, Bryant mentioned to Mrs. Smith
that “Morgan babysits,” and gave her another copy of Morgan’s flyer. Though the 5 flyer states that Morgan was part-time summer help and a vacation bible school
worker, at the time Beth Bryant gave the Smiths the flyer, the childcare center had
not yet employed Morgan. It also had not performed a criminal background check
on him, and it had not trained him to work with children. The childcare center had,
however, offered the possibility that Morgan could work part time the following
summer as summer school help.
The Smiths together discussed the possibility of hiring Morgan. Despite
some doubts, they decided to do so, because, according to the flyer, he had
experience working with children and, in particular, experience working at the
childcare center. They did not ask Morgan directly whether he had such
experience.
The Smiths hired Morgan in the first week of January 2008. Morgan went to
the Smiths’ home while the Smiths were present, and Mrs. Smith “ended up paying
Morgan to come to the house to spend time with us, interact with the boys, [and]
get to know them, because my overriding concern was just the transition of them
getting to know someone new.” Mrs. Smith’s first impression of Morgan was not
positive, but she thought, “okay, maybe he’s just not good with grown-ups,” and
that “he must be good with kids or the center wouldn’t have hired him.”
Morgan first babysat alone with the boys at the Smith’s home a couple of
weeks later. He babysat for the Smiths approximately five to ten times between
6 January and June 2008. Toward the end of that period, Mrs. Smith noticed a
change in Morgan’s attitude. It caused her concern, and she decided to stop hiring
him.
Meanwhile, following up on the center’s offer to employ Morgan that
summer, Morgan completed his application for summer employment at the center
in February 2008 and cleared a criminal background check. Morgan worked at the
center as a paid employee for one day, in late June. About then, the Smith boys
disclosed to their parents that Morgan had molested them while he was babysitting.
The Smiths contacted law enforcement, and Morgan was arrested. The childcare
center immediately discontinued Morgan’s employment.
Morgan later admitted to having sexually assaulted the boys; he pleaded
guilty to felony charges. In his civil deposition for this case, Morgan testified that
the incidents of abuse occurred in March, April, and May of 2008. The criminal
court sentenced him to twelve years’ imprisonment. Before his arrest, Morgan had
no criminal history and no record of any school misconduct that would warrant
suspension.
7 A. Morgan’s experience with children.
Morgan had volunteer experience helping his mother at vacation bible
school and had helped his sister Kelsey in her classroom during the summer of
2007. However, he had no experience babysitting or caring for children by
himself.
The Church maintains a safe sanctuary training program in an effort to
protect children from, among other things, sexual predators. The written Church
policy requires that “[a]ll persons working with children and youth receive training
on Safe Sanctuary issues and . . . undergo a criminal background screening prior to
serving.” Because Morgan had not been employed by the childcare center at the
time the flyer was distributed, the childcare center had not completed a criminal
background check, nor had Morgan received safe sanctuary training. When the
Church completed the check in February, Morgan had no criminal history.
B. Morgan’s psychological history.
Morgan was diagnosed with attention deficit disorder in the eighth grade,
for which he was prescribed medication. Between his freshman and junior years of
high school, Morgan’s parents discovered that he had viewed adult pornography on
the internet a few times, and they confronted him about it. After the first time, the
Bryants installed an internet filter. Morgan stopped viewing the pornographic sites
for a few months, but he later managed to work around the internet filter. The
8 second and third times, they again lectured Morgan about the evils of pornography.
The Smiths’ expert psychologist testified that the vast majority of sixteen-year-old
boys have visited pornographic websites. She further opined, however, that an
adolescent boy whose parents caught him viewing pornography two or three times
in a three-year period would raise “a red flag.”
In December 2007, Morgan was diagnosed with depression, for which his
physician, in consultation with a psychologist, prescribed an antidepressant.
Morgan began to receive regular psychological counseling. His depression came
to his mother’s attention when she learned that Morgan, uncharacteristically, had
skipped school because he was unprepared for class and was extremely stressed
about his academic performance. The medication and counseling appeared to
alleviate his condition. At that time, Morgan’s psychologist subjected Morgan to
clinical testing. Nothing in the results led the psychologist to suspect that Morgan
presented a danger to young children. During their many sessions, Morgan never
mentioned anything to his psychologist that would have led him to suspect that
Morgan had tendencies toward pedophilia or sexual deviancy. In the course of the
legal proceedings against him, however, Morgan admitted that he had begun to
have private thoughts about molesting young boys. He told no one about them—
not his doctors, his counselors, or anyone in his family.
9 II. Procedural history.
Through their DTPA claim, Smiths sought their past and future counseling
and therapy expenses, the cost of repairing their home furnishings damaged by
evidence collection in the criminal investigation, lost earnings, and pain and mental
anguish.
The jury found that:
• Beth Bryant and the childcare center violated the DTPA by either “(a) Representing that Morgan had sponsorship, approval, status, affiliation, or connection that he did not have, or (b) Representing that services are or will be of a particular standard, quality, or grade if they were of another,” they did so knowingly, and Bryant did so intentionally.
• In preparing the flyer, Beth Bryant knowingly and intentionally failed to disclose information and engaged in an unconscionable course of conduct “with the intention to induce [the Smiths] into a transaction they otherwise would not have entered into if the information had been disclosed.”
• Bryant was acting in the scope of her employment in circulating the flyer.
The jury apportioned responsibility as follows: five percent to the Church,
five percent to Bryant, and ninety percent to Morgan. The trial court entered
judgment on the jury’s findings. It awarded the Smiths their attorney’s fees and
apportioned them among the defendants according to the responsibility findings.
The trial court denied Bryant and the Church’s motion for judgment
notwithstanding the verdict, raising the issues now presented on appeal.
10 Discussion
We first examine whether any evidence supports a finding that the
misrepresentations in the flyer caused the damages the trial court assessed against
the Church and Beth Bryant under the DTPA.
A. Standard of review
Bryant and the Church challenge the trial court’s denial of their motion for
judgment notwithstanding the verdict, contending that no evidence supports the
jury’s finding that the representations in the babysitting flyer were a producing
cause of the Smiths’ damages. The test for legal sufficiency is “whether the
evidence at trial would enable reasonable and fair-minded people to reach the
verdict under review.” City of Keller v. Wilson, 168 S.W.3d 802, 827 (Tex. 2005).
Rulings on motions for jnov, if made on an evidentiary basis, are reviewed under
the same legal-sufficiency test we apply to other no-evidence challenges. See
Tanner v. Nationwide Mut. Fire Ins. Co., 289 S.W.3d 828, 830 (Tex. 2009) (citing
City of Keller, 168 S.W.3d at 823. We review the evidence in a light favorable to
the jury’s finding. Sw. Key Program, Inc. v. Gil-Perez, 81 S.W.3d 269, 274 (Tex.
2002).
11 B. DTPA
To prevail on a DTPA claim, the Smiths must prove that: (1) they were
consumers; (2) the Church and Bryant engaged in at least one of the laundry list
items; (3) the Smiths detrimentally relied on the false, misleading, or deceptive act
or practice; and (4) the false, misleading, or deceptive act or practice was a
producing cause of the Smiths’ injury. See TEX. BUS. & COM. CODE § 17.50(a)
(West 2011); Amstadt v. U.S. Brass Corp., 919 S.W.2d 644, 649 (Tex.1996); B&W
Supply, Inc. v. Beckman, 305 S.W.3d 10, 21 (Tex. App.—Houston [1st Dist.] 2009,
pet. denied). If a DTPA claim is based in part upon a failure to disclose material
information, the statute also requires proof that the defendant knew the information
and failed to bring it to the plaintiff’s attention. See TEX. BUS. & COM. CODE ANN.
§ 17.46(b)(23) (West 2011) (stating that it is unlawful to fail to “disclose
information concerning . . . services which was known at the time of the
transaction”). A defendant has no duty to disclose material facts it should have
known but did not. Prudential Ins. Co. of Am. v. Jefferson Assocs., Ltd., 896
S.W.2d 156, 162 (Tex. 1995); Robinson v. Preston Chrysler-Plymouth, Inc., 633
S.W.2d 500, 502 (Tex. 1982).
12 C. Causation
The jury found that the Smiths would not have hired Morgan but for the
representations in the flyer, and that those representations were a substantial factor
in bringing about their damages. Bryant and the Church contend that the Texas
Supreme Court’s decision in Doe v. Boys Clubs of Greater Dallas, Inc., 907
S.W.2d 472 (Tex. 1995), compels the conclusion that such evidence is legally
insufficient to prove causation.
In Boys Clubs, the plaintiffs sued the organization both in negligence and
under the DTPA, seeking damages arising from the sexual molestation of boys by
Mullens, who was a Boys Clubs volunteer. 2 Id. at 475. The Smiths contend that
Boys Clubs is inapposite, because it analyzes causation in the context of the
plaintiffs’ negligence claim, not their DTPA claim. The Smiths correctly point out
that, unlike the more lenient producing-cause element required under the DTPA,
the proximate cause element of a negligence claim requires greater foreseeability.
Nevertheless, both producing cause and proximate cause share the primary
requirement that the plaintiff prove the defendant’s conduct was the cause in fact
of the alleged injury. See Boys Clubs, 907 S.W.2d at 481 (“Raising a fact question
of producing cause, as with proximate cause, requires some evidence that the
defendant’s act or omission was the cause in fact of the plaintiff’s injury.”);
2 The facts giving rise to the suit predated the 1995 amendments to the DTPA limiting recovery to economic damages. 13 Prudential Ins. Co., 896 S.W.2d at 161 (“The element common to both proximate
cause and producing cause is actual causation in fact.”) (both citing Gen. Motors
Corp. v. Saenz, 873 S.W.2d 353, 357 (Tex. 1993)). It thus is appropriate to
examine Boys Clubs for guidance in reviewing this case.
In Boys Clubs, the court recites that Mullens began to volunteer at the club
in the spring of 1986 to fulfill a sixty-hour community service requirement
imposed in connection with his second conviction for driving while intoxicated.
907 S.W.2d at 475. That summer, the Coes brought their grandsons to the Club,
after seeing an advertisement that promoted the Club as having “a wholesome
environment.” Id. at 479–80. They met Mullens while he was working as a
volunteer on the Club’s premises. Id. at 476. Mullens began to visit the Coe home
almost every weekend in the latter part of the summer of 1986 and then began to
visit even more, including weekday visits. Id. at 476, 481. Mullens continued to
volunteer at the Club after completing his community service hours.
The Coes permitted Mullens to take the boys on outings within weeks of
meeting him. Id. at 481. At the end of the summer, Mullens offered to take the
boys on an overnight camping trip. Id. Before accepting the offer, Mrs. Coe
contacted the Club to make further inquiry about Mullens. The Club staff told her
that Mullens was a volunteer, that he worked for the sheriff’s department, and that
14 he “seemed to be okay,” but that Mrs. Coe would need to “decide for herself”
whether to let him take the boys camping. Id. at 476, 480.
During the camping trip, Mullens sexually abused one of the Coes’s
grandsons. Later that fall, he took the boys on a fishing trip, during which he
abused another. By the following summer, Mullens had become a regular guest in
the Coes’s home, sometimes spending the night. Mullens repeatedly abused the
boys during this period. Sometime in 1988, the Coes learned that Mullens had
been sexually assaulting their grandsons. They sued the Boys Clubs, bringing
claims under various negligence theories and the DTPA. Id. at 476.
With respect to the Club’s representation that it “[c]hecked out” its
volunteers “thoroughly,” the Texas Supreme Court agreed that the statement this
was false, but concluded that the requisite causal connection was broken. Id. at
481. Similarly, in considering causation in this case, we assume, without deciding,
that the evidence supports the jury’s DTPA findings that Bryant and the Church
made actionable misrepresentations. Cause in fact requires proof those
misrepresentations were a substantial factor in bringing about the injuries, and
without them, the harm would not have occurred. See IHS Cedars Treatment Ctr.
of DeSoto, Tex., Inc. v. Mason, 143 S.W.3d 794, 799 (Tex. 2003). The Supreme
Court has explained that
15 [t]he word “substantial” is used to denote the fact that the defendant’s conduct has such an effect in producing the harm as to lead reasonable men to regard it as a cause, using that word in the popular sense, in which there always lurks the idea of responsibility, rather than in the so-called “philosophic sense,” which includes every one of the great number of events without which any happening would not have occurred.
Lear Siegler, Inc. v. Perez, 819 S.W.2d 470, 472 & n.1 (Tex. 1991) (quoting
RESTATEMENT (SECOND) OF TORTS § 431 cmt. a (1965)), quoted in Transcont’l Ins.
Co. v. Crump, 330 S.W.3d 211, 224 (Tex. 2010). Evidence that the defendant’s
conduct did no more than furnish a condition which made the injuries possible
does not satisfy the cause-in-fact requirement. Boys Clubs, 907 S.W.2d at 478.
Even if the injury would not have happened but for the defendant’s conduct, the
connection between the defendant and the plaintiff’s injuries simply may be too
attenuated to constitute legal cause. Id. at 477–78.
In Doe, the Texas Supreme Court agreed with the trial court that the Coes
had failed to raise a fact issue that the Boys Clubs’s representations were a
producing cause of the Coes’s injuries. Id. at 480–81. Although the Coes met
Mullens at the Boys Clubs’s premises, the Court explained, they developed a
relationship independent of the Boys Clubs, through which Mullens manipulated
the Coes into giving him unsupervised access to their grandchildren. Id. The
Court further noted that the criminal conduct did not take place at the club. Id.
Any of the misrepresentations, including that the club performed thorough
16 background checks of its volunteers, the Court concluded, did no more than furnish
a condition that made the injuries possible. Id.
We follow the reasoning in Doe to determine that a legal cause sufficient to
impose civil liability for the criminal conduct of another is similarly lacking in this
case. The flyer and Bryant’s comment led the Smiths to offer a job to Morgan to
babysit their children. The first time they hired Morgan, Mrs. Smith remained
present to observe Morgan’s interaction with her sons. The molestation began two
months later. By then, the Smiths had hired Morgan at least two other times after
their first observation visit. Without any prompting from, or remuneration to,
Bryant or the Church, the Smiths hired Morgan to babysit the boys five to ten
times during the period from January to May 2008.
The Smiths suggest that we distinguish Boys Clubs based on the duration of
the families’ independent relationships with the perpetrators of the abuse—two
years in the Doe case and five months in this one. But Boys Clubs is not so
different from this case in timing as to undermine its fundamental holding that
representations of character or fitness cannot impose third-party liability for the
criminal conduct of another, when the criminal conduct happens independently. In
Doe, the Coes met Mullens at the club at the beginning of the summer; their
grandsons’ first camping trip with Mullens—and also the first incident of sexual
abuse—occurred at the end of that summer. In comparison, the Smiths received
17 the flyer and first hired Morgan in early January 2008. The first incident of abuse
occurred in March, during the third or fourth time that Morgan babysat for the
Smiths. Although the length of time can be a factor in determining whether a
causal chain is broken, the duration in the two cases does not, standing alone,
distinguish Boys Clubs in a way that would lead to a different result. As the Texas
Supreme Court explained there: “[c]ommon sense tells us that the relationship
between Mr. and Mrs. Coe and Mullens developed independently of the Boys
Clubs’s relationship with the Coes,” even though Mullens met the Coes through his
work at the Club. Id. at 481.
Likewise, the relationship between Morgan and the Smiths developed
independently of Bryant and the Church. After the initial flyer, all of the contact
between Morgan and the Smiths took place at the Smiths’ home. As with the Coes
and Mullens in the Doe case, the Smiths’ own interactions with Morgan informed
their decision to continue to hire Morgan. By the time of the abuse, the connection
between the representations in the flyer and Morgan’s presence in the Smith’s
home was too attenuated to cause the Smiths’ injuries—as in Doe, the
misrepresentations in the flyer created a condition that later made the grievous
injuries possible—it was not a producing cause of them. See id.
18 Conclusion
We hold that the record does not contain legally sufficient evidence that the
Church and Bryant’s representations caused the Smiths’ damages. Thus, the trial
court erred in denying Beth Bryant and the Church’s motions for judgment
notwithstanding the verdict. We reverse the judgment of the trial court and render
judgment that the Smiths take nothing against Beth Bryant, Atascocita United
Methodist Church and the Weekday Learning Center.
Jane Bland Justice
Panel consists of Justices Jennings, Bland, and Massengale. Justice Jennings dissents in a separate opinion.