Date: 02-27-2017

Case Style: David Lee Richardson v. The Potter's House of Dallas, Inc.

Case Number: 05-16-00646-CV

Judge: Robert M. Fillmore

Court: Texas Court of Appeals, Fifth District on appeal from the 296th Judicial District Court, Collin County

Plaintiff's Attorney: Tim Baker

Defendant's Attorney: Glynis L. Zavarelli

Description: David Lee Richardson sued appellees, The Potter’s House of Dallas, Inc., Sheryl Brady,
T.D. Jakes, Joby Brady, and Mark Jeffries, and asserted claims individually and as next friend of
his minor children, S.R. and S.R., for negligence, gross negligence, intentional infliction of
emotional distress, civil conspiracy, and aiding and abetting. Richardson individually asserted
additional claims for defamation and assault and battery. The trial court granted appellees’
motion for traditional summary judgment on the defamation claim and no-evidence motion for
summary judgment on the remaining claims. In one issue, Richardson asserts the trial court
erred by granting summary judgment in favor of appellees. We affirm the trial court’s judgment.
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Background
In his petition, Richardson alleged he was a long-time member of, and held a leadership
position in, The Potter’s House Church’s north campus in Parker, Texas. However, after Sheryl
Brady, the pastor of the north campus, learned in January 2013 that Richardson had written a
book entitled “Sunday Morning Stickup: What Your Pastor Doesn’t Want You to Know About
Tithes,” he was stripped of his leadership position. Brady also preached a sermon on January 13,
2013, that Richardson interpreted as a “direct threat to his character and a way to discredit the
book prior to it being released.”
Richardson further alleged that he attended church services with his two children on
January 27, 2013. A police officer asked him to step outside and speak with Jeffries, but he
declined to do so until the service was over. Four police officers then carried him from the
church against his will. Richardson alleged his two children observed the incident. Richardson
asserted claims individually and on behalf of his children for negligence, gross negligence,
intentional infliction of emotional distress, civil conspiracy, and aiding and abetting. He
individually asserted additional claims for assault and battery and defamation. Both Richardson
and his children sought to recover actual and punitive damages.
Appellees filed a combined traditional and no-evidence motion for summary judgment.
Appellees sought a traditional summary judgment on their affirmative defense that Richardson’s
defamation claim was barred by the applicable statute of limitation. Appellees requested a noevidence
motion for summary judgment on all of the claims asserted by Richardson, individually
and on behalf of his children.
Richardson responded to the motion, asserting he had produced sufficient evidence to
raise a fact issue on his claims for assault and battery, civil conspiracy to commit assault and
battery, and aiding and abetting the commission of assault and battery, and on his request for
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punitive damages. As summary judgment evidence, Richardson relied on his affidavit, a report
from the Parker Police Department, and a letter from The Potter’s House of Dallas, Inc.’s
counsel. The trial court granted a number of appellees’ objections to Richardson’s summary
judgment evidence. Following the trial court’s rulings, Richardson’s remaining summary
judgment evidence consisted of (1) statements in his affidavit that he attended a meeting on
January 10, 2013, with Brady and Lawrence Robinson; he attended church services at the north
campus on January 13, 2013, with his minor children; he attended church services at the north
campus on January 20, 2013, with his wife and his minor children and sat in the back of the
middle section of the sanctuary; on January 27, 2013, he attended church services at the north
campus with his minor children and sat in the back, because church services were about to begin,
he “indicated a willingness to speak with Jeffries after the service,” eventually four police
officers arrived and carried him against his will and stated disapproval from the building, and he
did not consent to being touched or carried from the building; and on January 31, 2013, he
received a letter dated January 29, 2013, from counsel for The Potter’s House of Dallas, Inc.
entitled “Statutory Notice of Trespass and Notice of Removal as a Church Member,” and (2) the
letter from counsel informing Richardson that he had been removed as a member of the church
and his entry or presence at church locations would be considered a criminal trespass.
The trial court signed an order granting appellees’ motion for summary judgment. In its
order, the trial court noted Richardson did not respond to the motion for summary judgment on
the claims for negligence, gross negligence, intentional infliction of emotional distress, and
defamation and did not produce evidence of damages suffered by S.R. and S.R.; granted
appellees’ traditional motion for summary judgment on Richardson’s defamation claim; and
granted appellees’ no-evidence motion for summary judgment on the claims for negligence,
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gross negligence, and intentional infliction of emotional distress and on the claims that S.R. and
S.R. had suffered damages due to appellees’ conduct.
The trial court also found Richardson produced no evidence that any appellee committed
an act or omission which constitutes aiding or abetting, and granted appellees’ no-evidence
motion for summary judgment on that cause of action. As to Richardson’s claims for assault and
battery and civil conspiracy, the trial court found Richardson failed to produce any competent
summary judgment evidence to establish the elements required for either of these causes of
action and specifically failed to provide competent summary judgment of any recoverable actual
damages in connection with these claims. The trial court granted appellees’ no-evidence motion
for summary judgment on Richardson’s assault and battery and civil conspiracy claims. Finally,
the trial court granted appellees’ no-evidence motion for summary judgment on Richardson’s
claim for punitive damages because he failed to produce any competent summary judgment
evidence of actual damages or “to establish the standards required by Texas Civil Practice &
Remedies Code, Chapter 41[.]”
Richardson filed this appeal, challenging only the grant of the no-evidence summary
judgment on the assault and battery, civil conspiracy, aiding and abetting, and punitive damages
claims.1 Accordingly, we affirm the trial court’s grant of a traditional summary judgment on
Richardson’s defamation claim and a no-evidence summary judgment on Richardson’s and his
children’s negligence, gross negligence, and intentional infliction of emotional distress claims.
See Yeske v. Piazza Del Arte, Inc., No. 14-15-00633-CV, 2016 WL 7436507, at *12 (Tex.
App.—Houston [14th Dist.] Dec. 22, 2016, no pet.) (affirming grant of no-evidence motion for
summary judgment because appellant did not address claims on appeal).
1 Richardson also challenges the granting of a traditional summary judgment on these claims on the ground appellees failed to establish they
were entitled to judgment as a matter of law. However, appellees did not move for a traditional summary judgment on Richardson’s assault and
battery, civil conspiracy, aiding and abetting, and punitive damages claims, and the trial court did not grant a traditional summary judgment on
these claims.
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Standard of Review
We review the trial court’s grant of summary judgment de novo. Merriman v. XTO
Energy, Inc., 407 S.W.3d 244, 248 (Tex. 2013). After an adequate time for discovery, a party
may move for summary judgment on the ground there is no evidence of one or more essential
elements of a claim or defense on which an adverse party would have the burden of proof at trial.
TEX. R. CIV. P. 166a(i). The movant must challenge specific elements of the nonmovant’s claim
or defense on which the nonmovant will have the burden of proof at trial. TEX. R. CIV. P.
166a(i). To defeat the summary judgment, the nonmovant must produce summary judgment
evidence that raises a genuine issue of material fact on each of the challenged elements. TEX. R.
CIV. P. 166a(i); Merriman, 407 S.W.3d at 248.
We review the trial court’s grant of a no-evidence summary judgment under the same
legal sufficiency standard as directed verdicts. Merriman, 407 S.W.3d at 248. We consider the
evidence in the light most favorable to the nonmovant, crediting evidence favorable to the
nonmovant if reasonable jurors could, and disregarding contrary evidence unless reasonable
jurors could not. Gonzalez v. Ramirez, 463 S.W.3d 499, 504 (Tex. 2015) (per curiam). A noevidence
summary judgment is improperly granted if the nonmovant produces more than a
scintilla of probative evidence to raise a genuine issue of material fact. Smith v. O’Donnell, 288
S.W.3d 417, 424 (Tex. 2009). A no-evidence summary judgment will be sustained when (1)
there is a complete absence of evidence of a vital fact, (2) the court is barred by rules of law or of
evidence 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 mere scintilla, or (4) the evidence conclusively
establishes the opposite of the vital fact. Merriman, 407 S.W.3d at 248.
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Analysis
Richardson contends the trial court erred by granting appellees’ no-evidence motion for
summary judgment on his claims for assault and battery, civil conspiracy to commit assault and
battery, and aiding and abetting the commission of assault and battery, and on his request for
punitive damages. We first note that, in one cause of action labeled “Assault and Battery,”
Richardson pleaded that appellees and/or their agents “intentionally, knowingly or recklessly
cause[d] member[s] of the Parker police force to make physical contact with [Richardson], which
caused bodily injury to [Richardson] and/or for which [appellees] knew or reasonably should
have known that [Richardson] would regard as offensive or provocative.” Although the
intentional torts of assault and battery are related, they are conceptually distinct. City of
Watauga v. Gordon, 434 S.W.3d 586, 589 (Tex. 2014). “An assault occurs when a person is in
apprehension of imminent bodily contact, whereas a battery is committed when an individual
actually sustains a harmful or offensive contact to his or her person.” Id. We conclude
Richardson substantively pleaded an offensive-contact battery, not an assault. See In re J.Z.P.,
484 S.W.3d 924, 925 (Tex. 2016) (per curiam) (“[C]ourts should acknowledge the substance of
the relief sought despite the formal styling of the pleading.”).
A “battery is defined to require an intentional touching without consent[.]” City of
Watauga, 434 S.W.3d at 594; see also Envtl. Processing Sys., L.C. v. FPL Farming Ltd., 457
S.W.3d 414, 419 n.3 (Tex. 2015). A battery is actionable based on the offensive nature of the
contact, not its extent. City of Watauga, 434 S.W.3d at 590, 592. “Personal indignity is the
essence of an action for battery; and consequently the defendant is liable not only for contacts
which do actual physical harm, but also for those which are offensive and insulting.” Id. at 590
(quoting Fisher v. Carrousel Motor Hotel, Inc., 424 S.W.2d 627, 630 (Tex. 1967)); see also
Waffle House, Inc. v. Williams, 313 S.W.3d 796, 802–03 (Tex. 2010) (recognizing continuing
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viability of battery based on offensive contact). It is enough that the defendant intended “bodily
contact that is ‘offensive.’” City of Watauga, 434 S.W.3d at 593.
Appellees moved for summary judgment on Richardson’s battery claim on the grounds
there was no evidence appellees (1) committed a battery, (2) engaged in intentional conduct
meant to inflict bodily injury on Richardson, or (3) committed an act of offensive touching of
Richardson. Richardson produced no evidence that appellees touched him in any manner.
Richardson argues, however, that the police officers’ removal of him from the church was an
offensive touching, and there is more than a scintilla of evidence that appellees can be held liable
for that battery because they conspired to commit the tort or “aided and abetted” the police
officers in committing the tort.
Civil conspiracy involves a “combination of two or more persons with an unlawful
purpose or a lawful purpose to be accomplished by unlawful means.” Ernst & Young, L.L.P. v.
Pac. Mut. Life Ins. Co., 51 S.W.3d 573, 583 (Tex. 2001). The essential elements of a civil
conspiracy are (1) two or more persons, (2) an object to be accomplished, (3) a meeting of the
minds on the object or course of action, (4) one or more unlawful, overt acts, and (5) damages as
a proximate result. Tri v. J.T.T., 162 S.W.3d 552, 556 (Tex. 2005). Civil conspiracy is a
derivative tort, and a defendant’s liability for civil conspiracy depends on its participation in an
underlying tort for which the plaintiff seeks to hold at least one of the named defendants liable.
Tilton v. Marshall, 925 S.W.2d 672, 681 (Tex. 1996) (orig. proceeding). To the extent there is a
common law cause of action for “aiding and abetting” separate and apart from a civil conspiracy
claim,2 liability for aiding and abetting generally arises where an actor, with unlawful intent,
gives substantial assistance and encouragement to a wrongdoer in a tortious act. Juhl v.
2 We express no opinion as to whether Texas law recognizes a cause of action for aiding and abetting separate and apart from a civil
conspiracy claim. See Ernst & Young, L.L.P., 51 S.W.3d at 583 n.7; LandAmerica Commonwealth Title Co. v. Wido, No. 05-14-00036-CV, 2015
WL 6545685, at *10 n.1 (Tex. App.—Dallas Oct. 29, 2015, no pet.) (mem. op.).
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Airington, 936 S.W.2d 640, 644 (Tex. 1996) (citing RESTATEMENT (SECOND) OF TORTS § 876(b)
(AM. LAW INST. 1977)). “Aiding and abetting” is a “dependent” claim “premised on” an
underlying tort. Ernst & Young, L.L.P., 51 S.W.3d at 583.
Appellees moved for summary judgment on Richardson’s civil conspiracy claim on the
grounds there was no evidence (1) of any underlying tort and/or unlawful act committed by any
of the appellees, (2) that any appellee conspired with anyone to commit an unlawful, overt act,
(3) an agreement or “meeting of the minds” as to any particular course of action, or (4) any
damages suffered by Richardson as a proximate result of any purported agreement. As to the
“aiding and abetting” claim, appellees moved for summary judgment on the ground there was no
evidence they participated in any action that constitutes aiding and/or abetting.
Richardson relies solely on the police report to support his argument there is more than a
scintilla of evidence to support (1) his civil conspiracy claim because the report shows a meeting
of the minds to remove him from the church service and an overt act in furtherance of the
purpose, and (2) his aiding and abetting claim because the report shows appellees arranged for
the police officers to be present at the service, misrepresented to the police officers that
Richardson had been told not to attend the service, and directed the police officers to physically
escort him from the building. However, the trial court sustained appellees’ objections that the
police report was hearsay, lacked the proper foundation, and was not property authenticated, and
Richardson has not appealed those rulings. Therefore, we may not consider the police report in
reviewing the trial court’s grant of summary judgment. See Frankoff v. Norman, No. 14-11-
00152-CV, 2012 WL 2394050, at *7–8 (Tex. App.—Houston [14th Dist.] June 26, 2012, no pet.)
(memo. op.).
Richardson produced no evidence there was an agreement or “meeting of the minds”
between any of appellees and any other person to commit a battery against Richardson or of any
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act by any appellee that gave substantial assistance and encouragement to the police officers’
removal of Richardson from the building. Accordingly, the trial court properly granted
appellees’ no-evidence motion for summary judgment on Richardson’s claims for battery, civil
conspiracy, and “aiding and abetting.” See id. (trial court properly granted summary judgment
when nonmovant failed to support response with proper summary-judgment evidence). Because
Richardson has no surviving tort claims, the trial court also properly granted summary judgment
on his claim for punitive or exemplary damages. See Chevez v. Brinkerhoff, No. 05-13-00572-
CV, 2014 WL 7246798, at *6 n.8 (Tex. App.—Dallas Dec. 22, 2014, no pet.) (mem. op.)
(“Without underlying liability, Chevez’s claim for exemplary damages fails.” (citing Fed.
Express Corp. v. Dutschmann, 846 S.W.2d 282, 284 (Tex. 1993) (per curiam) (recovery of
punitive damages requires finding of independent tort with accompanying actual damages)); see
also Burbage v. Burbage, 447 S.W.3d 249, 263 (Tex. 2014) (“A party may not recover
exemplary damages unless the plaintiff establishes actual damages.”).

Outcome: We resolve Richardson’s sole issue against him and affirm the trial court’s judgment.

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