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.
-- October 22, 2013
Brock C. Akers, Evelyn Ailts Derrington, Neal D. Kieval, Phillips Akers Womac, Britton B. Harris, Brett J. Sileo, Harris, Hilburn & Sherer, Houston, TX, for Appellants.Chris Dove, Derrick Carson, Nicholas P. Dickerson, Caren DeLuccio, Locke Lord LLP, Houston, TX, for Appellees.
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 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.
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.
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.
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:
HELP AROUND THE HOUSE?
(Documented Day Labor)
POSSIBLE BABYSITTER AT YOUR SERVICE
Need someone while WLC is on break for the Holidays?
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 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 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.
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 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.
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.
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).
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).
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.”); 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 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
[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 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 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.
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.
In taking from appellees, the Plaintiff–Children (the “Children”) and Plaintiff–Parents (the “Parents”), their lawfully awarded damages, the majority substitutes its judgment in place of that of the jury below, does not apply the well-settled standard for reviewing the legal sufficiency of the evidence, and misapplies the governing law. Accordingly, I respectfully dissent.
The majority holds that “no evidence” supports the jury's findings that the following violations of the Texas Deceptive Trade Practices–Consumer Protection Act (“DTPA”) constituted a “producing cause”1 of the damages of the Children and Parents, for the rape and sexual molestation of the Children: (1) the false, misleading, or deceptive acts or practices2 of appellants, Beth Bryant and the Atascocita United Methodist Church and the Weekday Learning Center (collectively, the “WLC”), (2) Beth's failure to disclose information, of which she was aware, about Morgan Bryant, her psychologically-disturbed teenage son, to induce the Parents to hire Morgan to babysit the Children,3 and (3) Beth's engagement in an unconscionable action or course of action.4
However, the Parents testified, directly and clearly, that they simply would not have hired Morgan Bryant to babysit their Children, their three- and five-year-old sons, but for the representations of Beth Bryant and WLC that he had sponsorship, approval, status or connection, which he did not have, and his baby-sitting services would be of a particular standard, quality or grade, of which they were not. They also explicitly explained that they would not have hired Morgan had Beth disclosed to them information about his serious psychological problems. From the Parents' testimony and the other record evidence, the jury could have reasonably concluded that Beth Bryant and WLC did themselves endanger the Children and cause their and their Parents' damages by promoting the psychologically-disturbed Morgan Bryant as a babysitter and misrepresenting his qualifications to babysit. And it could have further reasonably concluded that Beth's withholding from the Parents of critical information about Morgan's disturbed psychological condition constituted an unconscionable action and caused the Children and Parents' damages.
Standard of Review
In gauging whether a trial judge has erred in making a legal ruling or a jury has made an erroneous finding of fact, a reviewing court must apply the pertinent appellate standards of review. These well-settled appellate standards “frame the issues, define the depth of review, assign power among judicial actors, and declare the proper materials to review.” W. Wendell Hall, Standards of Review in Texas, 34 St. Mary's L.J. 1, 8 (2002) (quoting Steven A. Childress, Standards of Review in Federal Appeals, in Univ. of Tex. 2nd Annual Conf. on Techniques for Handling Civil Appeals in State and Federal CourtT 4 (1992)). Standards of review are, in effect, checks on an appellate court's legitimate use of power because adherence to them restrains, in a very real way, the actions of the appellate court. As noted by Hall, “[s]tandards of review distribute power within the judicial branch by defining the relationship between trial and appellate courts.” Id.
We must sustain a legal-sufficiency or “no-evidence” challenge if the record shows one of the following: (1) a complete absence of evidence of a vital fact, (2) rules of law or evidence bar the court from giving weight to the only evidence offered to prove a vital fact, (3) the evidence offered to prove a vital fact is no more than a scintilla, or (4) the evidence establishes conclusively the opposite of the vital fact. City of Keller v. Wilson, 168 S.W.3d 802, 810 (Tex.2005). In conducting a legal-sufficiency review, a “court must consider [the] evidence in the light most favorable to the verdict, and indulge every reasonable inference that would support it.” Id. at 822 (emphasis added). The term “inference” means,
in the law of evidence, a truth or proposition drawn from another which is supposed or admitted to be true. A process of reasoning by which a fact or proposition sought to be established is deduced as a logical consequence from other facts, or a state of facts, already proved․
Marshall Field Stores, Inc. v. Gardiner, 859 S.W.2d 391, 400 (Tex.App.-Houston [1st Dist.] 1993, writ dism'd w.o.j.) (citing Black's Law Dictionary 700 (5th ed.1979)). For a jury to infer a fact, “it must be able to deduce that fact as a logical consequence from other proven facts.” Id.
We must overrule a legal-sufficiency or “no-evidence” challenge if there is more than a scintilla of evidence to support the challenged finding. Formosa Plastics Corp. USA v. Presidio Eng'rs & Contractors, Inc., 960 S.W.2d 41, 48 (Tex.1998). “ ‘[W]hen the evidence offered to prove a vital fact is so weak as to do no more than create a mere surmise or suspicion of its existence, the evidence is no more than a scintilla and, in legal effect, is no evidence.’ “ Ford Motor Co. v. Ridgway, 135 S.W.3d 598, 601 (Tex.2004) (quoting Kindred v. Con/Chem, Inc., 650 S.W.2d 61, 63 (Tex.1983)). However, if the evidence at trial would enable reasonable and fair-minded people to differ in their conclusions, then jurors must be allowed to do so. City of Keller, 168 S.W.3d at 822. “A reviewing court cannot substitute its judgment for that of the trier-of-fact, so long as the evidence falls within this zone of reasonable disagreement.” City of Keller, 168 S.W .3d at 822.
Morgan Bryant was a disturbed and troubled teenager, and it is not hard to understand why his mother tried to help him secure employment through her position and contacts at WLC. But the jury heard evidence that Beth Bryant and WLC crossed the line when, in actively promoting him to the parents and children who employed them, they misrepresented Morgan's work experience in dealing with children at WLC to act as a “POSSIBLE BABYSITTER AT YOUR SERVICE” and “Great companion for your ‘boys'!” This is especially true, given that Beth was well aware of his troubled psychological condition.
Beth Bryant knew that her son had psychological problems as early as when he was in the eighth grade and diagnosed with, and prescribed medication for, attention deficit disorder, an ongoing concern with him. She also knew that Morgan Bryant had admitted to being “addicted” to pornography. As acknowledged by the majority, between Morgan's freshman and junior years of high school, Beth and her husband caught him viewing pornography on the internet, and they admonished him to stop. But, after they had installed an internet filter on Morgan's computer to stop him from doing so, he was still able to, and continued to, view pornography.
Beth Bryant also knew that Morgan, due to his being overweight and teased by other teenagers, had, in his sophomore year in high school, serious “self-esteem” issues, for which he sought psychological counseling. And, in December 2007, she was aware that Morgan was having crying spells and his psychological condition had deteriorated to the point that a psychiatrist diagnosed him with depression and prescribed him antidepressant drugs. Morgan's depression was such that he underwent clinical testing and received regular psychological counseling.
Despite her awareness of this information about her son, Beth Bryant consciously chose to use her employment at WLC to help him secure babysitter jobs. And WLC obliged her. Near the end of 2007, Beth drafted the flyer quoted in the majority opinion for distribution to the parents of the children who attended WLC. She targeted the advertisement to parents who “[n]eed[ed] someone while WLC is on break for the Holidays,” noting that Morgan Bryant was a “POSSIBLE BABYSITTER AT YOUR SERVICE” and would be a “Great companion for your ‘boys'!”
More important, Beth Bryant represented in her advertisement that Morgan Bryant had been previously employed by WLC, listing his experience with working with children as:
Part–Time WLC Summer School Help
WLC Vacation Bible School Worker
These representations were false. Morgan had not worked at WLC at any time prior to Beth's distribution of the advertisement, and he did not even apply for employment at WLC until February 2008. And, as WLC concedes in its briefing, Beth testified to the jury that she actually made the representations that Morgan had worked at WLC in her advertisement in reference “to Morgan's upcoming employment with the school the next summer,” in 2008. WLC later admitted that Morgan had worked there “one day and one day only” in June 2008.
Disregarding the undisputed fact that Morgan had not worked with children at WLC, Beth Bryant, in accord with WLC policy, submitted the flyer containing the misrepresentations for approval and distribution at WLC to Beth Johnson. Johnson, WLC's director, testified that she read the flyer and approved it for distribution by Beth in WLC student backpacks just prior to the 2007 holiday season. In exchange for its approval for the distribution of the flyer, WLC obtained $20.00.
In early January 2008, the Parents received a copy of Beth Bryant's WLC-approved flyer in the backpack of their three-year old son. A few days later, Beth personally gave the Plaintiff–Mother a copy of the flyer at WLC and stated, “Morgan babysits,” despite the fact that he had never before babysat.
Both Parents testified that they decided to hire Morgan Bryant in late January 2008 to babysit their three- and five-year old sons based on the representations in the advertisement about his qualifications as including “Part-time WLC Summer School Help” and “WLC Vacation Bible School Worker.” Because the flyer had been approved by WLC and placed in their son's backpack by a WLC employee, the Parents trusted that the representations made about Morgan's work qualifications were true and WLC's teachers and staff had in fact worked with him, vetted him by observing his interaction with children at WLC, and trained him.
Morgan Bryant babysat the Children on five to ten occasions from late January through May 2008. On June 7, 2008, the younger child made an outcry about the rapes and sexual molestations that had been occurring the previous months. Over the months, Morgan had exposed his penis to the three- and five-year old boys and fondled both of their penises. And he had masturbated in front of them, telling them that he was playing a game to make his “man's milk” come out. And Morgan had forced the five-year old to take Morgan's penis into his mouth, stating, “If you suck on it, it will come out faster.”
The Parents learned specifically that their Children had been raped and sexually abused after their three-year old mentioned that Morgan Bryant had “pee-peed on the couch.” The five-year old then corrected the younger child, stating it was “man's milk,” not urine. He then imitated how Morgan had masturbated, gyrating his hips and making a masturbatory gesture with his hand. The Plaintiff–Father then contacted law-enforcement authorities, who subsequently arrested Morgan. And Morgan later confessed that he began raping and molesting the Children in March 2008, and he continued to do so in April and May.
In question one of its charge, the trial court asked the jury whether Beth Bryant and WLC had engaged in “any false, misleading, or deceptive act or practice that was a producing cause of damages” to the Children and their Parents, and the jury answered “yes” as to both. In response to questions two and three, the jury found that Beth had “fail[ed] to disclose information about services that was known at the time of the transaction with the intention to induce” the Parents “into a transaction they otherwise would not have entered into if the information had been disclosed,” she had “engag[ed] in an unconscionable action or course of action,” and her actions constituted a “producing cause” of damages to the plaintiffs. In answer to question four, predicated on a yes answer to question one, the jury found that both Beth and WLC had “knowingly” engaged in their conduct and Beth had also “intentionally” engaged in her conduct. In answer to questions five and six, predicated on yes answers to questions two and three, the jury further found that Beth had “knowingly” and “intentionally” failed to disclose information to the Parents and had engaged in an unconscionable action or course of action. And the jury found that Beth, “when she prepared and/or sent the flyer in question,” was “acting as an employee of WLC” and “in the scope of her employment in furtherance of the business” of WLC.
Producing Cause of Damages
In their second issue, Beth Bryant and WLC contend that the evidence is legally insufficient to support the jury's findings that their false, misleading, or deceptive acts or practices, Beth's failure to disclose information, and her unconscionable actions or course of action, were a “producing cause” of damages to the Children and Parents. WLC asserts that “[n]o business, no person should be faulted for failing to disclose information they do not have, or for misrepresentations which did not play a substantial role in causing the crime at issue.” Beth asserts that her “circulation of a flyer advertising her son's availability for babysitting merely resulted in Morgan Bryant being in the Plaintiff's house where Morgan Bryant had the opportunity to molest the Plaintiff Children.” (Emphasis added.)
Under the DTPA, a consumer may maintain an action where, among other acts, any of the deceptive practices listed in section 17.46(b) of the DTPA, or an unconscionable action or course of action, “constitute a producing cause of economic damages or damages for mental anguish․” Tex. Bus. & Com.Code Ann. § 17.50(a) (emphasis added). To establish a DTPA violation, a plaintiff does not have to meet the higher standard of proximate causation, which includes foreseeability as an element; “only [a] producing cause must be shown.” Prudential Ins. Co. of Am. v. Jefferson Assocs., Ltd., 896 S.W.2d 156, 161 (Tex.1995). But, the element “common to both proximate cause and producing cause is actual causation in fact,” which “requires proof that an act or omission was a substantial factor in bringing about injury which would not otherwise have occurred.” Id. (emphasis added). Thus, “producing cause and cause in fact are conceptually identical.” Transcontinental Ins. Co. v. Crump, 330 S.W.3d 211, 223 (Tex.2010).
However, as emphasized by the Texas Supreme Court, the “substantial factor” language “does not demand, nor even imply, a higher standard of legal causation beyond the ordinary sense of the concept,” and it “serves only to illustrate an essential aspect of causation to jurors․” Id. at 224 (emphasis added). As explained by the supreme court:
The 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. Each of these events is a cause in the so-called “philosophic sense,” yet the effect of many of them is so insignificant that no ordinary mind would think of them as causes.
Id. (quoting Lear Siegler, Inc. v. Perez, 819 S.W.2d 470, 472 & n. 1 (Tex.1991) (quoting Restatement (Second) of Torts § 431 cmt. a (1965)) (emphasis added). In other words:
[F]or an act or event to rise to the level of cause in the legal sense, the act or event must be such that reasonable jurors would identify it as being actually responsible for the ultimate harm. The cause must be more than one of the countless ubiquitous and insignificant causes that in some remote sense may have contributed to a given effect as, for example, simply getting up in the morning. That the term substantial factor is given to this commonsense aspect of legal causation simply makes plain to jurors that more than causation in this indirect, “philosophic sense” is required.
Id. at 224. In short, the substantial factor language merely repeats “something already included in the usual and ordinary meaning of ‘cause’ and draws juror attention to the importance of an unbroken causal connection.” Id. (quoting Texas Indem. Ins. Co. v. Staggs, 134 S.W.2d 1026, 1030 (Tex.Com.App.1940)).
In accord with the governing law, the trial court, in questions one, two, and three of if its charge, instructed the jury as follows:
“Producing cause” means a cause that was a substantial factor in bringing about the damages, if any, and without which the damages would not have occurred. There may be more than one producing cause.
As illustrated above, the Children and Parents presented ample evidence from which the jury could have reasonably inferred that Beth Bryant and WLC's false, misleading, or deceptive acts or practices, Beth's failure to disclose critical information about Morgan Bryant to the Parents, and her unconscionable actions constituted producing causes of their damages.
The jury heard evidence that Beth Bryant, as an employee of WLC and acting within the scope of her employment, and WLC actively promoted Morgan Bryant to the parents and children who utilized WLC's services. And they misrepresented Morgan's experience in working with children at WLC to act as a “BABYSITTER AT YOUR SERVICE” and “Great companion for your ‘boys'!”
The Children and Parents also presented undisputed evidence that Beth Bryant was well aware of her son's troubled psychological condition, although she presented conflicting evidence as to the meaning and extent of his troubles. The jury could have reasonably rejected Beth's evidence and concluded that no reasonable and prudent parent would have ever considered hiring Morgan Bryant to babysit a three- or five-year old child if they had information that he was being medicated for attention deficit disorder, was “addicted” to pornography, or was being counseled and medicated for depression. Why not? Because, given the serious nature of Morgan's psychological problems, one would be placing the life of one's child into a very volatile and dangerous situation.
Again, the record evidence shows that Beth Bryant knew that her son had had psychological problems since he was in the eighth grade and was diagnosed with, and prescribed medication for, attention deficit disorder. Morgan Bryant had admitted to Beth and her husband that he was “addicted” to pornography, and although they had installed an internet filter on his computer to stop him, he worked his way around it and continued to view pornography. Beth also knew that Morgan, due to his being overweight and teased by other teenagers, had, in his sophomore year in high school, serious “self-esteem” issues, for which he obtained psychological counseling. And, in December 2007, one month before promoting his babysitting services to the Plaintiff–Mother, Beth was aware that Morgan was having crying spells and his psychological condition had deteriorated to the point that a psychiatrist diagnosed him with depression and prescribed him antidepressant drugs.
Moreover, Beth Bryant, the jury found, intentionally and knowingly chose to use her employment at WLC to help Morgan Bryant secure babysitter jobs. She drafted the flyer quoted in the majority opinion for distribution to the parents of the children who attended WLC, promoting Morgan as a “POSSIBLE BABYSITTER AT YOUR SERVICE” and “Great companion for your ‘boys'!” And she represented in her advertisement that Morgan had been previously employed by WLC, listing his experience with working with children as:
Part–Time WLC Summer School Help
WLC Vacation Bible School Worker
In fact, Morgan Bryant had not worked at WLC at any time prior to Beth Bryant's distribution of the advertisement, and he did not apply for a job there until February 2008, after the Parents had hired him. Again, as WLC concedes in its briefing, Beth, testified to the jury that she actually made the representations that Morgan had worked at WLC in her advertisement in reference “to Morgan's upcoming employment with the school the next summer” in 2008. And WLC later admitted that Morgan worked there “one day and one day only” in June 2008.
Finally, Beth Bryant, in accord with WLC policy, submitted the flyer containing the misrepresentations for approval for distribution at WLC to Beth Johnson. And Johnson, WLC's director, testified that she read the flyer and approved it for distribution by Beth Bryant in WLC student backpacks. In exchange for its approval for the distribution of the flyer, WLC made $20.00. Thus, the jury could have reasonably inferred that WLC, through both Beth Bryant and Beth Johnson, knowingly engaged in a false, misleading or deceptive act or practice.
In sum, the Parents hired Morgan Bryant to babysit their three- and five-year old children, a position of ultimate responsibility, trust, and confidence. They hired him to watch over their children and protect them from danger and dangerous individuals. They, quite literally, placed their children's lives into the hands of Morgan. And the jury heard evidence that they did so based upon Beth Bryant and WLC's false, misleading, and deceptive acts and practices, Beth's failure to disclose critical information, of which she was aware, about Morgan, and her unconscionable actions and course of action. These deceptive acts and practices concerned the very nature of the function and role of Morgan as a babysitter.
But for the false, misleading, and deceptive acts and practices of Beth Bryant and WLC, Beth's failure to disclose to the Parents information about Morgan Bryant's disturbed psychological condition, and her unconscionable actions and course of action, the Children would not have been placed into the safekeeping of one such as Morgan to be their trusted babysitter. The jury could have logically deduced that each of these deceptive acts and practices constituted a “substantial factor” in bringing about the damages of the Children and Parents and without which the damages would not have been incurred. See Marshall Field Stores, Inc., 859 S.W.2d at 400 (stating that for jury to infer fact, “it must be able to deduce that fact as a logical consequence from other proven facts.”).
In other words, the jury could have reasonably concluded that Beth Bryant and WLC's deceptive conduct had “such an effect in producing the harm” to the Parents and Children “as to lead reasonable men” and women “to regard it as a cause, using that word in the popular sense, in which there always lurks the idea of responsibility.” Crump, 330 S.W.3d at 224 (quoting Lear Siegler, Inc. 819 S.W.2d at 472 & n. 1 (quoting Restatement (Second) of Torts § 431 cmt. a (1965)) (emphasis added). That is, the jury could reasonably have identified the deceptive actions and practices of Beth and WLC “as being actually responsible for the ultimate harm,” and not just “one of the countless ubiquitous and insignificant causes that in some remote sense may have contributed to a given effect as, for example, simply getting up in the morning.” Id. Thus, the evidence is legally sufficient to support the jury's findings that Beth Bryant and WLC's false, misleading, and deceptive acts and practices, Beth's failure to disclose critical information to the Parent's about Morgan Bryant, and her unconscionable actions and course of action each constituted a “producing cause” of damages to the Children and Parents.
In support of their position to the contrary, Beth Bryant and WLC rely on Doe v. Boys Club of Greater Dallas, Inc., 907 S.W.2d 472 (Tex.1995). WLC asserts that “Doe is on point, dispositive,” and “require[s] this Court to reverse and render the judgment and rule that the [Children and Parents] take nothing. No other result is remotely fair.” (Emphasis added.) The majority agrees.
Based on its interpretation of Doe and the record evidence, the majority opines that the causal connection between the deceptive acts and practices of Beth Bryant and WLC and the damages incurred by the Children and Parents was broken because “the relationship between Morgan [Bryant] and [the Children and Parents] developed independently of [Beth] and [WLC].” (Emphasis added.) Although the majority acknowledges that Beth's “flyer and ․ comment led the [Parents] to offer a job to Morgan to babysit their children,” it asserts that the rape and sexual molestation of the three- and five year old boys “began two months later” and, ‘[b]y then, the [Parents] had hired Morgan at least two other times ․ [w]ithout any prompting from, or remuneration to [Beth] or [WLC]․” It concludes, thus,
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.
The majority's conclusion is wrong because it is based on two false premises: (1) the Children and their Parents had some kind of “relationship” with Morgan Bryant independent and separate from his position as a paid babysitter and (2) Doe justifies its holding.
First, there is no evidence in the record that the Children and the Parents had any so-called “relationship” whatsoever with Morgan Bryant outside of the Parent's hiring of him to be a babysitter. In fact, the Children and Parents presented evidence to the contrary. The record evidence is clear that the Parents were reluctant to hire Morgan in the first place after initially meeting him, and they continued to have misgivings about his abilities in the short time that they knew him. However, they, trusting and relying on the misrepresentations of Beth Bryant and WLC about his experience with children and babysitting, overcame their reluctance and misgivings. The jury could have reasonably deduced, thus, that the only “relationship” that the Children and the Parents had with Beth Bryant's son was based entirely on Beth and WLC's deceit. And neither Beth nor WLC presented conclusive evidence to the contrary.
Second, contrary to WLC's assertion, Doe is not on point, not dispositive, and does not require this Court to reverse and render judgment that the Children and Parents “take nothing.” Rather, Doe serves as a contrasting example of how strong of a case the Children and Parents have against Beth Bryant and WLC.
In Doe, Boyd Mullins, on community supervision for the offense of driving while intoxicated, performed sixty hours of community service for the Boys Club from March through September 1986, and he continued to volunteer there through the summer of 1987. 907 S.W.2d at 475. Mullens met two of the minor plaintiffs, who had joined the Boys Club, at the Boys Club in the summer of 1986, and one minor plaintiff, who joined the Boys Club the following summer. Id. As noted by the Texas Supreme Court, Mullens “took them and their friends on various outings not sponsored by the Boys Club.” Id. (emphasis added). And during the years, “Mullens also became a trusted acquaintance and family friend of the three boys' grandparents, Mr. and Mrs. Coe, and a common visitor in their home.” Id.
Specifically, although the Coe brothers “became acquainted with Mullens” at the Boys Club, “he also visited Mr. and Mrs. Coe in their home up to ten times,” and, later in the summer of 1986, “proposed taking the brothers on a camping trip.” Id. at 476. When Mrs. Coe then asked the Boys Club's education director about Mullens, he “emphasized that with regard to letting Mullens take the boys camping, ‘The Boys Club couldn't make that choice for her. She needed to make that decision for herself.’ “ Id. (emphasis added). Mr. and Mrs. Coe then gave their permission for Mullens to take A.C. and R.M. Coe on the overnight camping trip. Id. On the trip, after Mullens gave the two boys cigarettes, he sexually abused A.C. Coe. Id. In the fall of 1986, he sexually abused R.M. Coe while on a fishing trip. Id. And Mullens “continued to be a regular guest in the Coe home through 1988, and spent the night on many occasions.” Id.
The following summer, the Coe brothers' cousin, C.G. Doe, joined the Boys Club while he was spending the summer with Mr. and Mrs. Coe, his grandparents. Id. And Mullens met C.G. Doe at the Boys Club through the Coe brothers. Id. He first sexually abused C.G. Doe “on a second private camping trip taken alone with the three boys later the summer of 1987.” Id.
Doe and the Coes then asserted a DTPA claim against the Boys Club based in part on the Boys Club's representation to Mrs. Coe, made before A.C. and R.M. Coe joined, that the Boy's Club “thoroughly” “checked out” its volunteers before allowing them to work with members. Id. at 481. The supreme court held that summary judgment against the plaintiff's on this claim was proper because, “Given the long-term relationship Mullens fostered with Mr. and Mrs. Coe, the Boys Club's statement about investigating volunteers was not the producing cause of the boys' injuries. It at most furnished an attenuated condition that made the injury possible.” Id. at 481–82 (emphasis added). In so holding, the court emphasized that:
The events were as follows: the Coe brothers joined the club, they met Mullens, Mullens met Mr. and Mrs. Coe, and Mullens methodically proceeded to inveigle these grandparents into giving him their trust and confidence. He visited the Coe home almost every weekend the latter part of the summer of 1986, and visited even more, including weekday visits, the summer of 1987. The Coes let Mullens take the boys to lunch and to play “putt putt” golf within weeks of meeting him. According to A.C. Coe, Mullens actively deceived the Coes into placing their grandsons alone in his care. On at least ten visits to the Coes' home prior to the first camping trip, Mullens:
Just sat there and talked to my grandparents and got to know them and stuff ․ they would talk about child abuse and stuff and how he hated it ․ and [was] highly against drinking and doing drugs ․ he was real innocent and everything, [like] he didn't do nothing like that․
Common sense tells us that the relationship between Mr. and Mrs. Coe and Mullens developed independently of the Boys Club's relationship with the Coes. When Mrs. Coe returned to the Boys Club to inquire about Mullens, the club's education director emphasized, “The Boys Club couldn't make that choice for her,” and, “S he needed to make that decision for herself” whether to put her grandsons in Mullens's care.
Id. at 481 (emphasis added).
Given that (1) Mullens “fostered” a “long-term relationship” with Mr. and Mrs. Coe “independent” of his involvement with the Boys Club and (2) the Boys Club's education director told Mrs. Coe that it was her “decision” as to whether to allow Mullens to take the boys on a private camping trip, the Boys Club established, as a matter of law, that any statement it made to Mrs. Coe was “not a producing cause of the boys' injuries.” Id. at 481–82.
Here, in stark contrast to Doe, Beth Bryant and WLC did not present conclusive evidence that their deceptive acts and practices merely “furnished an attenuated condition that made” the Children and Parent's injuries “possible.” Morgan did go to the Children's home, but only in the context of babysitting them. There is no evidence that Morgan Bryant, himself, “methodically proceeded to inveigle ” the Parents into giving him their trust and confidence or in any way developed a relationship with the Parents independent and apart from his services as a babysitter. Rather, the evidence reveals that the Parents' trust and confidence was procured through the deceptive acts and practices of Beth Bryant and WLC. Nor did Morgan have any “relationship” with the three- and five-year old Children apart from raping and molesting them while he was supposed to be babysitting them.
From the record evidence, the jury could have logically deduced that the extent of any so-called “relationship” Morgan had with the Children and their Parents was based solely on his employment as a babysitter, which in turn was obtained through the deceptive actions of Beth Bryant and WLC. Accordingly, I would hold that the evidence is legally sufficient to support the jury's findings that Beth and WLC's false, misleading, and deceptive acts and practices, Beth's failure to disclose information about Morgan Bryant's psychological troubles, and her unconscionable actions or course of action, were each a “producing cause” of damages to the Children and Parents. And I would address the remaining issues and the Children and Parents' cross-appeal.
In reaching its contrary holding, the majority merely substitutes its judgment in place of that of the jury, does not follow the well-settled legal-sufficiency standard of review, and misapplies Doe.
Justice Felix Frankfurter observed that, “[a] timid judge, like a biased judge, is intrinsically a lawless judge.” Wilkerson v. McCarthy, 336 U.S. 53, 65, 69 S.Ct. 413, 419 (1949) (Frankfurter, J., concurring). He made this comment in emphasizing that a judge “fails in his duty to take a case from the jury when the evidence would not warrant a verdict by it.” Id. To make a civil defendant pay damages to a plaintiff when there is no evidence to support the defendant's liability or the plaintiff's damages is indeed a “lawless” act. However, it is just as “lawless” for a judge to take from a plaintiff a just damages award based on a jury verdict supported by sufficient evidence.
As demonstrated here, the review of the evidence in a case for legal sufficiency is probably the most important task of any judge. Judges, in performing this critical function, have two helpful guides to follow: (1) a standard of review and (2) the basic rules of logic. However, it is a sad fact that courts sometimes fail in performing this task and end up merely substituting their judgment for that of a jury. As Goethe noted long ago, “error has plenty of room to wander round and to hold sway.”5 Unfortunately, in regard to the legal-sufficiency review of evidence in courts, this is especially true. And, as this case reveals, such an error can have disastrous consequences not only for the litigants involved, but for the state's jurisprudence. Thus, this Court's error is of such importance to Texas jurisprudence that it should be corrected by our high court. See Tex. Gov't Code Ann. § 22.001(a)(6) (Vernon 2004).
1. “Smith” is a pseudonym.
2. The facts giving rise to the suit predated the 1995 amendments to the DTPA limiting recovery to economic damages.
1. See Tex. Bus. & Com.Code Ann. § 17.50(a)(1) (Vernon 2011).
2. See id. at § 17.46(b)(5) (Vernon 2011).
3. See id. at § 17.46(b)(24).
4. See id. at § 17.50(a)(3).
5. Johann Wolfgang von Goethe, Maxims and Reflections, p. 158 (Penguin Books 1998).
JANE BLAND, Justice.
Justice JENNINGS dissents in a separate opinion.