Filed

11 April 28 P4:33
John Warren
County Clerk
Dallas County
CAUSE NO. CC-10-03251-A

JOHN DOE I and JANE DOE I, § IN THE COUNTY COURT AT LAW

Individually, and as Next Friend §
of JANE DOE II, a Minor, §
§
Plaintiffs, §
§
V. § NO. 1
§
THE EPISCOPAL SCHOOL OF §
DALLAS, INC., §
§
Defendant. §
§ OF DALLAS COUNTY, TEXAS

ESD’S NO-EVIDENCE MOTION FOR SUMMARY JUDGMENT THAT IT IS

A CHARITABLE INSTITUTION SUBJECT TO DAMAGES CAP

TO THE HONORABLE JUDGE OF SAID COURT:

Pursuant to Texas Rules of Civil Procedure 166a(i), Defendant The Episcopal School of

Dallas, Inc. (“ESD”) files this No-Evidence Motion for Partial Summary Judgment that ESD is a

Charitable Institution Subject to Damages Cap. In support, ESD would respectfully show the

Court as follows:

I.
INTRODUCTION

ESD has previously moved for summary judgment that, as a 501(c)(3) non-profit

accredited secondary school, it qualifies for charitable immunity under Chapter 84 of the Texas

Civil Practice and Remedies Code.1 That motion remains pending. Now that the discovery

period for the putative June 6 trial setting is ending, ESD moves for summary judgment on the

ground that Plaintiffs cannot raise a genuine issue of material fact that ESD acted with gross

1
See ESD’s Motion for Partial Summary Judgment on Its Status as a Charitable Organization, filed December 29,
2010.
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negligence or committed an intentional tort. As a result, ESD is entitled to the charitable

immunity statute’s $500,000 cap on damages.

This case arises from the sexual relationship between Nathan Campbell, a former ESD

teacher, and Jane Doe II, a former ESD student. Plaintiffs first complain that ESD should have

prevented or discovered the relationship. Second, they complain about ESD’s decision to

separate Jane Doe II from the school after administrators determined that the school was no

longer a healthy place for her.

Regarding the first complaint, it is undisputed that ESD had no actual notice that

Campbell was engaging in the behavior. Without actual, subjective awareness of the risk, there

can be no liability for gross negligence or for an intentional tort arising from these facts.

Regarding the second complaint, ESD had the absolute discretion to separate Jane Doe II

from the school. Courts will not interfere with a private school’s exercise of its own judgment in

dismissing a student, as the relationship is a contractual one. Because ESD was entitled to act

within its discretion and did so, no gross negligence or intentional tort arises from its decision to

separate her from the school.

ESD therefore requests that this Court determine that ESD is entitled to summary

judgment on Plaintiffs’ claims for (1) assault, (2) breach of fiduciary duty, (3) fraud and

“securing execution of a document by deception”, (4) “defamation/publicity of embarrassing

facts/false light”, and (5) gross negligence. Without any viable claims for gross negligence or

intentional torts, ESD is entitled to partial summary judgment that its liability in the case is

capped at $500,000 under Texas Civil Practice and Remedies Code (CPRC) §84.006.

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 II.
GROUNDS FOR SUMMARY JUDGMENT

1. ESD is entitled to summary judgment on Plaintiffs’ cause of action for gross

negligence because Plaintiffs have no evidence to show that ESD had an actual subjective

awareness of an extreme degree of risk and a conscious indifference to the rights, safety, or

welfare of others.

2. ESD is entitled to summary judgment on Plaintiffs’ cause of action for assault

because Plaintiffs have no evidence to show that:

a. Campbell’s assault was within the course and scope of his employment;

b. ESD authorized Campbell’s assault; or that

c. Campbell’s assault was committed in furtherance of his employment.

3. ESD is entitled to summary judgment on Plaintiffs’ cause of action for breach of

fiduciary duty because Plaintiffs have no evidence to show that:

a. ESD owed Plaintiffs a fiduciary duty; or that

b. ESD breached a fiduciary duty owed to Plaintiffs.

4. ESD is entitled to summary judgment on Plaintiffs’ cause of action for fraud

because a court may not interpret the allegedly fraudulent representations because they require

interpretation of religious doctrine and because Plaintiffs have no evidence to show that:

a. The alleged statements are capable of being true or false;

b. ESD had knowledge that its alleged representations were false when

made, or were made recklessly, as a positive assertion, without knowledge

of their truth;

c. Plaintiffs detrimentally relied on any alleged misrepresentation; and

d. Plaintiffs have no evidence of causation of any damages.

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 5. ESD is entitled to summary judgment on Plaintiffs’ cause of action for “securing

execution of a document by deception in violation of Texas Penal Code § 32.46” because (a)

there is no private cause of action a violation of the Penal Code; (b) for the same reasons that it is

entitled to summary judgment on the fraud claim; and (c) for the additional reasons that there is

no evidence of intent, no evidence of causation, and the written instrument did not adversely

affect the property or interests of Plaintiffs.

6. ESD is entitled to summary judgment on Plaintiffs’ cause of action for

“defamation/publicity of embarrassing facts/false light” on the grounds that:

a. There is no evidence of malice;

b. There was no actionable statement of fact;

c. There was no false statement;

d. ESD had a privilege to terminate Doe II’s relationship with the school;

e. “False light” is not a valid claim in Texas; and

f. There is no evidence of publicity.

7. Because ESD is entitled to summary judgment on gross negligence and each one

of Plaintiffs’ causes of action for intentional torts, ESD is entitled to partial summary judgment

that the limitations on liability for charitable organizations in CPRC §84.006 apply in this case.

III.
ARGUMENT AND AUTHORITIES

A. No-Evidence Summary Judgment Standard

This case has been pending since May 2010 and is specially set for trial in June of this

year. Thus, there has been adequate time for discovery. Each of the grounds for summary

judgment stated is an essential element of Plaintiffs’ claims against ESD and is an element upon

which Plaintiffs have the burden of proof at trial.

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 A no-evidence motion for summary judgment permits a party, which does not have the

burden of proof and without presenting evidence, to move for summary judgment on the ground

that there is no evidence to support an essential element of the other side’s claim. TEX. R. CIV. P.

166a(i); Fox Entertainment Group, Inc. v. Abdel-Hafiz, 240 S.W.3d 524, 530-31 (Tex. App.—

Forth Worth 2007, pet. denied). A no-evidence motion for summary judgment must be granted

“unless the nonmovant produces summary judgment evidence that raises a genuine issue of

material fact.” East Hill Marine, Inc. v. Rinker Boat Co., Inc., 229 S.W.3d 813, 816 (Tex.

App.—Fort Worth 2007, pet. denied); accord Sw. Elec. Power Co. v. Grant, 73 S.W.3d 211, 215

(Tex. 2002).

B. The Limits of ESD’s Liability in this Case.

1. ESD’s liability for any wrongful act or omission is capped at $500,000, absent proof

of gross negligence or intentional torts.

As set forth in ESD’s Motion for Partial Summary Judgment on its Status as a Charitable

Organization, ESD is a charitable organization within the meaning of Chapter 84 of the CPRC.

Pursuant to §84.006:

in any civil action brought against a nonhospital charitable organization for

damages based on an act or omission by the organization or its employees…the
liability of the organization is limited to money damages in the maximum amount
of $500,000 for each person and $1,000,000 for each single occurrence.

TEX. CIV. PRAC. & REM. CODE §84.006. The only exception to these limitations relevant to this

Motion is for “an act or omission that is intentional, willfully negligent, or done with conscious

indifference or reckless disregard for the safety of others.” TEX. CIV. PRAC. & REM. CODE

§84.007(a). This standard has been generally interpreted to require intentional conduct or gross

negligence. Chrismon v. Brown, 246 S.W.3d 102, 106-107 (Tex. App.—Houston [14th Dist.]

2007, no pet.) (equating standard under CPRC §84.007 with standard for gross negligence).

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 2. ESD is entirely immune from liability for discretionary acts, absent gross

negligence or an intentional tort.

ESD is a private school. As such, its relationship with its students and their parents is

governed by contract principles. See, e.g., Law v. William Marsh Rice Univ., 123 S.W.3d 786,

792 (Tex. App.—Houston [14th Dist.] 2003, pet. denied). As to disciplinary matters, it is well

established that—because of the contractual nature of the relationship—students who are

suspended, expelled, or otherwise disciplined “are entitled only to those procedural safeguards

which the school specifically agrees to provide.” See Centre College v. Trzop, 127 S.W.3d 562,

568 (Ky. 2003); see also Driscoll v. Board of Trustees of Milton Academy, 873 N.E.2d 1177,

1186-87 (Mass. App. 2007); Schaer v. Brandeis Univ., 735 N.E.2d 373 (Mass. 2000); Psi

Upsilon v. Univ. of Pa., 591 A.2d 755, 758 (Pa. Super. 1990) (quoting Boehm v. Univ. of Pa.

School of Veterinary Medicine, 573 A.2d 575 (Pa. Super. 1990)); Holbert v. Univ. of Chicago,

751 F. Supp. 1294, 1301 (N.D. Ill. 1990). A private school is not required to adhere to the

standards of due process or abide by the rules of evidence adopted by courts. Schaer v. Brandeis

Univ., 735 N.E.2d 373 (Mass. 2000); Centre College v. Trzop, 127 S.W.3d 562, 567 (Ky. 2003).

Furthermore, ESD’s policies provided that dismissal from the school was at the discretion

of the Headmaster. Where a matter is committed to the private school’s discretion, there can be

no liability. Morrone v. Prestonwood Christian Academy, 215 S.W.3d 575 (Tex. App.—

Eastland 2007, no pet.) In Morrone, the parents of a private school kindergartner complained

that the girl’s teacher was verbally and emotionally abusing the girl and her classmates. The trial

court granted summary judgment that the teachers were immune from liability under the

Coverdell Teacher Protection Act because of the discretionary nature of their tasks. Id. at 584.

See 20 U.S.C. § 6736. The trial court further granted summary judgment that because the school

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could only act through its teachers, who were immune, the school was likewise immune from

liability. Id.

The Plaintiffs in Morrone attempted to argue on appeal that the teacher and the school

were not immune because the damages were caused by “willful or criminal misconduct, gross

negligence, reckless misconduct, or a conscious, flagrant indifference to the rights or safety of

the individual harmed by the teacher,” which are exceptions to the immunity statute. Id. at 581;

see also 20 U.S.C. § 6736(a). In considering these exceptions, the court of appeals first

determined that the exceptions were akin to gross negligence or intentional conduct under Texas

law. Id. at 582-83. It also considered whether the facts presented a violation of the Texas Penal

Code statute prohibiting child abuse. Id. Finding that the evidence disproved the exceptions, the

court of appeals held both the school and the teacher were entitled to immunity, and affirmed the

trial court’s determination. Id.

C. Plaintiffs Have No Evidence To Support Their Claim that ESD Committed Gross
Negligence.

Plaintiffs attempt to override the limitations on liability in §84.006 by showing that ESD

committed gross negligence. See First Amended Petition, ¶¶ 63, 71 (asserting that ESD’s actions

consisted of gross negligence and were done with “conscious indifference and in reckless

disregard”). In order to prove their cause of action for gross negligence, Plaintiffs must show

that ESD committed an act or omission:

(A) which when viewed objectively from the standpoint of the actor at the time of
its occurrence involves an extreme degree of risk, considering the probability and
magnitude of the potential harm to others; and

(B) of which the actor has actual, subjective awareness of the risk involved, but
nevertheless proceeds with conscious indifference to the rights, safety, or welfare
of others.

TEX. CIV. PRAC. & REM. CODE §41.001(11).

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 Put simply, Plaintiffs must prove that ESD had actual subjective awareness of an extreme

degree of risk and a conscious indifference to the rights, safety, or welfare of Jane Doe II. State

v. Shumake, 199 S.W.3d 279, 287 (Tex. 2006). Moreover, Plaintiffs must prove that ESD’s

behavior constituted an objectively extreme degree of risk—a threshold considerably higher than

the “reasonable person” standard for simple negligence. See Trans. Ins. Co. v. Moriel, 879

S.W.2d 10, 22 (Tex. 1994). The “extreme risk” prong is not satisfied by a remote possibility of

injury or even a high probability of minor harm, but rather “the likelihood of serious injury” to

the particular plaintiff. Id.

There is simply no evidence that ESD had an actual, subjective awareness of an extreme

degree of risk that Campbell was engaged in inappropriate sexual conduct with Doe II or even

that he had a propensity to engage in inappropriate sexual conduct while employed at ESD.

Indeed, Plaintiffs’ Petition does not even plead that ESD had that awareness. See Petition at pp.

4-13.

The Court has ample guidance from both the United States Supreme Court and the Texas

Supreme Court on what constitutes actual, subjective awareness in this very context. In the case

of Gebser v. Lago Vista Independent School District, 524 U.S. 274, 291-292 (1998), the United

States Supreme Court examined whether a school had actual, subjective awareness of a sexual

relationship between a high school social studies teacher and his 10th-grade female student. As

in the instant case, the relationship was alleged to have progressed from the teacher making

increasingly suggestive comments to the girl, into kissing and fondling, and finally into a sexual

relationship. Id. at 277-78. During the time of the relationship, the school had neither a sexual

harassment policy nor a harassment reporting procedure. Id. at 278; 291. The sexual acts took

place off campus and Gebser never reported the relationship to the school. Id. at 278. Gebser

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argued that the school was “on notice” of the actions of the teacher because two other parents

complained that the teacher had made sexually inappropriate comments to the class. Id. at 278;

291.

After settling the question as to the applicable legal standard, the United States Supreme

Court held that the school’s failure to comply with regulations or to create a policy did not

establish actual notice or deliberate indifference to the misconduct. Id at 291-92. Similarly, the

parental reports of in-class, sexually inappropriate comments by the teacher did not constitute

actual notice to a school official that he was having a sexual relationship with Gebser. Id. at 291.

The Texas Supreme Court has also considered the issue of actual notice in Doe v. Boys

Clubs of Greater Dallas, Inc., 907 S.W.2d 472, 477 (Tex. 1995). In Doe, the Court considered

the Boys Club’s liability for the sexual assault of three minors by one of its volunteers, who had

an undiscovered history of drunk driving. Plaintiffs alleged that the club negligently screened its

volunteers, negligently failed to supervise them, and negligently failed to investigate their

backgrounds. Id. at 477. The Texas Supreme Court held that Plaintiffs failed to raise an issue of

cause-in-fact because, while an investigation or screening might have revealed the propensity for

drunk driving, it did not constitute notice of the propensity for sexual assault. Id. at 478.

Furthermore, because the assaults took place away from the club, the lack of supervision bore no

cause-in-fact relationship to the assaults. Id.

Applying the holdings in Gebser and Doe to the instant case, it is clear that Plaintiffs

have no evidence sufficient to raise a fact issue of ESD’s gross negligence, or even of its simple

negligence. There is no evidence that ESD had actual notice of the risk of harm to Doe II.

Moreover, because its alleged breaches of duty are legally insufficient to satisfy the causation

element even for simple negligence, ESD cannot be held liable for gross negligence. Louisiana-

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Pacific Corp. v. Andrade, 19 S.W.3d 245, 247 (Tex. 1999) (evidence of simple negligence alone

is not sufficient to establish gross negligence); Transp. Ins. Co., 879 S.W.2d at 22; see also

Chrismon, 246 S.W.3d at 108 (acts of employee of charitable organization were not sufficient to

override Chapter 84 caps when plaintiff showed no evidence that defendant’s acts objectively

posed an extreme degree of risk or that defendant proceeded with conscious indifference to the

rights of others).

Plaintiffs also have no evidence to show that ESD’s discretionary act in separating from

Jane Doe II constitutes gross negligence. ESD acted within its contractual rights in separating

from Jane Doe II. See Morrone, 215 S.W.3d at 584 and n.2. Plaintiffs have no evidence to show

that ESD’s exercise of the discretionary rights granted to it pursuant to contract constitutes

negligence, much less gross negligence. See DeWitt County Electric Coop., Inc. v. Parks, 1

S.W.3d 96, 105 (Tex. 1999) (action taken in accordance with rights specifically granted by

contract does not constitute negligence.) Because ESD is entitled to summary judgment on

Plaintiffs’ cause of action for gross negligence, this cause of action will not override the

limitations on liability for charitable organizations.

D. Plaintiffs Have No Evidence That ESD Committed An Intentional Tort

1. Sexual Assault

Plaintiffs have no evidence to hold ESD vicariously liable for Campbell’s assault. See

Petition, p. 13. An employer can only be vicariously liable for an assault by an employee if the

assault is committed within the course and scope of his employment. Houston Transit Co. v.

Felder, 208 S.W.2d 880, 881 (Tex. 1948) (“a master is liable for the willful and malicious acts of

his servant when done within the scope of his employment. Such acts are imputable to the

master, under the doctrine of respondeat superior….”); Green v. Jackson, 674 S.W.2d 395, 398

(Tex. App.—Amarillo 1984, writ ref’d n.r.e.) (“The established general rule in Texas is that it is
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not ordinarily within the scope of a servant’s authority to commit an assault on a third person.

Such an assault is usually an expression of personal animosity and is not for the purpose of

carrying out the master’s business.”).

To prove ESD’s vicarious liability for Campbell’s assault, Plaintiffs must show that

either (a) ESD authorized the act expressly, or implicitly by placing Campbell in a position that

involved the use of physical force, or (b) Campbell committed the assault directly from and in

furtherance of his responsibilities as a teacher. Green, 674 S.W.2d at 398; Rosales v. Am.

Buslines, Inc., 598 S.W.2d 706, 708 (Tex. App.—El Paso 1980, writ ref’d n.r.e.). Plaintiffs have

no evidence to show that Campbell’s assault of Jane Doe II was committed within the course and

scope of his employment.

a. Plaintiffs have no evidence that ESD authorized Campbell’s assault.

Courts apply the “rule of force” to hold an employer liable for an employee’s assault

under respondeat superior. Green, 674 S.W.2d at 398; Rosales, 598 S.W.2d at 708. Under this

rule Plaintiffs must present evidence to show that ESD authorized Campbell’s conduct. See id.

Plaintiffs have no such evidence. To the contrary, it is uncontroverted that ESD did not even

know of Campbell’s acts—let alone authorize them. Because there is no evidence that ESD

authorized Campbell to sexually assault Jane Doe II, ESD is entitled to summary judgment on

Plaintiffs’ claim for sexual assault.

b. Plaintiffs have no evidence that Campbell’s assault was

committed in furtherance of his employment.

Other courts require that a plaintiff show that the employee’s assault arose directly from

and was committed in furtherance of the employee’s business responsibilities. Green, 674 S.W.

2d at 398; Rosales, 598 S.W.2d at 708; see also Viking v. Circle K Convenience Stores, 742

S.W.2d 732, 734 (Tex. App.—Houston [1st Dist.] 1987, writ denied) (an employee acts outside

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of the scope of employment when assault is committed for personal reasons). Plaintiffs have no

evidence to show that Campbell was acting in furtherance of his employment when he

committed the assault. To the contrary, Plaintiffs admit that Campbell’s conduct was wholly

contrary to his responsibilities as a teacher and contrary to ESD’s stated goals as an educational

institution. See Petition, pp. 3-4. Indeed, Campbell was not even Jane Doe II’s teacher at the

time of the alleged assault. Because Plaintiffs have no evidence to show that Campbell was

acting in the course and scope of his responsibilities in committing the alleged assault, ESD is

entitled to summary judgment on this claim.

2. Breach of Fiduciary Duty

Plaintiffs have no evidence to show that ESD committed a breach of fiduciary duty. In

order to prove their cause of action for breach of fiduciary duty, Plaintiffs must present evidence

to show that (1) ESD owed them a fiduciary duty, and (2) ESD breached that duty. Priddy v.

Rawson, 282 S.W.3d 588, 599 (Tex. App.—Houston [14th Dist.] 2009, pet. denied).

a. Plaintiffs have no evidence to show that ESD owed them a fiduciary duty.

To prove an action for breach of fiduciary duty, Plaintiffs must establish that ESD owed

Plaintiffs a fiduciary duty under law or contract. Id. Whether a plaintiff and a defendant have a

fiduciary relationship is a question of law. Environmental Procedures, Inc. v. Guidry, 282

S.W.3d 602, 627 (Tex. App.—Houston [14th Dist.] 2009, pet. denied) (“Not every relationship

involving a high degree of trust and confidence rises to the stature of a fiduciary relationship.”)

Plaintiffs have no evidence to show that a confidential or fiduciary relationship between

Plaintiffs and ESD existed under law or contract. Ho v. The Univ. of Texas Arlington, 984

S.W.2d 672, 692-93 (Tex. App.—Amarillo 1998). As a matter of law, a formal fiduciary

relationship does not exist between educators and students in a normal academic setting. Id. at

692-93. Moreover, the normal duties of an educator to teach, supervise, advise, and evaluate a
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student are not by their nature confidential so as to give rise to a fiduciary relationship. See id.

Plaintiffs have no evidence to show that ESD owed them a fiduciary duty.

b. Plaintiffs have no evidence to show that ESD

breached a fiduciary duty owed to them.

Even if ESD did somehow owe Plaintiffs a fiduciary duty, Plaintiffs have no evidence to

show that the action they complain of—specifically, ESD’s decision to separate from Jane Doe

II—constitutes a breach of fiduciary duty. See Petition at p. 17. The relationship between a

private school and its students (and their parents) is contractual. See, e.g., Law, 123 S.W.3d at

792. ESD absolutely had the discretion to separate with Jane Doe II. See id. at 794. A cause of

action for breach of fiduciary duty cannot be founded on an act which a defendant has a legal

right to perform. See Aon Properties, Inc. v. Riveraine Corp., No. 14-96-00229-cv, 1999 WL

12739, at *10 (Tex. App.—Houston [14th Dist.] Jan. 14 1999, no pet.) (fiduciary duty does not

create an obligation to act in derogation of the express terms of an agreement and does not

encompass a duty to remain in a relationship or otherwise answer in tort damages); see also Baty

v. ProTech Ins. Agency, 63 S.W.3d 841, 863-64 (Tex. App.—Houston [14th Dist.] 2001, pet.

denied). And although Plaintiffs argue in support of their breach of fiduciary duty claim that

ESD secured Doe II’s withdrawal under false pretenses (Petition at ¶ 50), they judicially admit

that under any circumstances Doe II was going to be separated from the school. Petition at ¶ 31.

Therefore, no breach of an alleged fiduciary duty was the cause of Doe II’s separation from ESD.

Plaintiffs have no evidence, and, in fact, assert no allegations that ESD committed any act that is

not specifically addressed within the contract with Plaintiffs. See Petition, p. 17.

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 3. Fraud; Securing Execution of Document by Deception

a. Plaintiffs have no evidence of fraud.

Plaintiffs have no evidence to show that ESD committed fraud. Plaintiffs premise their

fraud cause of action on the representations that ESD is “a parochial school, founded upon

Episcopalian principles, that would keep safe and nurture students in a religious environment.”

Petition, ¶ 53. First, as a matter of law, these representations are not actionable because they

would require the Court to interpret the scope of religious practices and doctrines in

contravention to the First Amendment of the United States Constitution. See, e.g., Turner v.

Church of Jesus Christ of Latter Day Saints, 18 S.W.3d 877, 897-98 (Tex. App.—Dallas 2000,

pet. denied). Moreover, to prove their cause of action for fraud, Plaintiffs must prove that ESD

knew the representations were false when made, or made the representations recklessly, as a

positive assertion, without knowledge of their truth. See, e.g., In re International Profit Assocs.,

274 S.W.3d 672, 678 (Tex. 2009). Additionally, Plaintiffs are required to prove causation—

either that the fraud resulted in direct damages or proximately caused other damages. Plaintiffs

have no such evidence as it pertains to any of these amorphous allegations.

Plaintiffs also argue that ESD made material false statements in order to induce John Doe

to withdraw Jane Doe II from school. Petition at ¶ 54. These alleged false statements consist of

interpretations of what it meant for Doe II to be expelled. However, Plaintiffs judicially admit

that Doe II was going to be separated from ESD regardless of whether John Doe I chose to sign

the withdrawal paper. Petition at ¶ 31. Accordingly, their Petition affirmatively disproves any

detrimental reliance on the alleged misrepresentations. See Johnson & Johnson Med., Inc. v.

Sanchez, 924 S.W.2d 925, 930 (fraud requires proof of detrimental reliance on the false

statement; rendering take-nothing judgment on fraud claim when no showing of detrimental

reliance).
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 b. “Securing Execution” is not a civil claim; fails for same reasons as fraud

Plaintiffs’ claim for “Securing Execution of Document by Deception in Violation of

Texas Penal Code § 32.46” fails on its face and as a matter of law because there is no

independent, private cause of action. See Lopez v. Countrywide Mortgage, No. 2:06-116, 2008

WL 4682040, at *4 n.6 (S.D. Tex. Oct. 20, 2008) (Section 32.46 does not provide private cause

of action); Aguilar v. Chastain, 923 S.W.2d 740, 745 (Tex. App.—Tyler 1996, writ denied)

(“[T]he Penal Code does not create private causes of action.”).

But even assuming there was, the claim fails for the same reasons their fraud claim fails:

Doe II was going to be removed from the school regardless of whether John Doe I signed the

document. Petition at ¶ 31. Therefore, the execution of the document did not – and could not –

be the cause-in-fact of any “adverse affect on the property and interests of Victim and her

family,” a necessary element of the alleged crime. Petition at ¶ 60; see TEX. PENAL CODE §

32.46. Additionally, assuming there is a private cause of action, Plaintiffs have no evidence that

ESD secured the execution “with intent to defraud or harm” Plaintiffs, which is the culpable

intent required by the purely criminal statute. See id.

4. Defamation, Publicity of Embarrassing Facts, and False Light.

Plaintiffs complain that when ESD separated Doe II from the school, “ESD created the

public impression that Victim was at fault and to blame for the incident.” Petition at ¶ 57. They

also allege that “ESD’s employees, both before and after the expulsion, gossiped about Victim

and made slanderous comments and innuendo about Victim’s virtue and imputed sexual

misconduct on her.” Id. Plaintiffs have no evidence that any of these allegations were done with

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intent or gross negligence.2 Furthermore, these allegations are legally insufficient to establish

these causes of action.

There is no claim for “false light” in Texas—the Texas Supreme Court has expressly

rejected a “false light” cause of action. Cain v. Hearst Corp., 878 S.W.2d 577 (Tex. 1994).

Similarly, Plaintiffs cannot state a claim for public disclosure of private facts. A necessary

element is “publicity” and requires “communication to more than a small group of persons; the

matter must be communicated to the public at large, such that the matter becomes one of public

knowledge.” Indus. Found. v. Tex. Indus. Acc. Bd., 540 S.W.2d 668, 683 (Tex. 1976).

Examples of sufficient publication include newspaper and magazine articles, handbills and

pamphlets distributed to a large group, radio and television broadcasts, and public speeches. See

RESTATEMENT (2D) OF TORTS § 652D cmt. a. Plaintiffs have no evidence to satisfy the publicity

requirement, and in fact judicially admit that they cannot prove communication to the public at

large. See Petition at ¶ 27 (alleging ESD “attempted to sweep the entire matter under the rug”

and “should have addressed the matter with the teachers, students and families in the ESD

community.”); ¶ 57 (alleging only “gossip” and “innuendo” among teachers). But even if

Plaintiffs have sufficient evidence of publicity, the manner in which they have pled the cause of

action is negligence-based; they have no evidence of gross negligence or intentional publicity

and therefore the charitable damages cap would still apply. See generally Star-Telegram, Inc. v.

Doe, 915 S.W.2d 471, 474-75 (Tex. 1995) (rendering take nothing judgment where rape victim

sued newspaper for running story that contained “facts which do not directly identify an innocent

2
It must be noted that not all defamation is intentional. In fact, defamation can be negligent or in some cases, a
matter of strict liability. See O’Conner’s Texas Causes of Action (2010), Ch. 18-A, § 2.1(2)(2) (noting publication
element may be either negligent-based or intentional); id. at § 2.5 (noting fault element may be either malice-based,
negligence-based, or strict liability). Negligent defamation or defamation for which strict liability attaches would
not serve to bust ESD’s charitable immunity cap, because there is not the requisite actual knowledge. TEX. CIV.
PRAC. & REM. CODE §84.006.
ESD’S NO EVIDENCE MOTION FOR SUMMARY JUDGMENT THAT IT IS A CHARITABLE ORGANIZATION
SUBJECT TO DAMAGES CAPS—PAGE 16
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individual but which make that person identifiable to persons already aware of uniquely

identifying personal information.”).

Plaintiffs also have no evidence to establish their defamation portion of this hybrid claim.

First and foremost, the “statements” on which they rely are not statements of fact, and therefore

are not actionable. Bentley v. Bunton, 94 S.W.3d 561, 583 (Tex. 2002). The truth or falsity of

the facts must be objectively verifiable by evidence. Id. In this case, a “public impression that

Victim was at fault and to blame for the incident” does not convey an assertion of an objectively

verifiable fact, and as such, is not actionable. Id.

Second, a statement must be false in order to be actionable as defamation. Cain, 878

S.W.2d at 580. To the extent that Plaintiffs complain that Doe II was identified as “the one” who

had the sexual relationship with the teacher, either before or after her removal from school, those

are not false statements and therefore are not actionable.

Third, to the extent the alleged defamation arose from Doe II’s separation from school,

there is no cause of action because that “defamation” was privileged. As explained supra, ESD

had an absolute right to dismiss Doe at the discretion of the headmaster, as it did. Therefore,

because it was legally privileged by contract to dismiss her, any defamatory statement “inferred”

from that act does not comprise actionable defamation.

Finally, gossip is not actionable, particularly where, as here, it was not authorized by

ESD and the alleged perpetrators were reprimanded. See, e.g., Marshall Field Stores, Inc. v.

Gardiner, 859 S.W.2d 391, 400 (Tex. App. – Houston [1st Dist.], 1993 writ dism’d w.o.j.).

Because Plaintiffs have no evidence that ESD authorized or ratified the alleged gossip, ESD is

entitled to summary judgment on this claim.

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SUBJECT TO DAMAGES CAPS—PAGE 17
2010177_2.DOC
 IV.
CONCLUSION

Plaintiffs have no evidence to show that ESD is liable for intentional torts or gross

negligence. Therefore, this Court should grant summary judgment for ESD on each such claim,

and further grant judgment that ESD’s liability for money damages is capped at $500,000 in this

case.

Respectfully submitted,

/s/ Scott K. Koelker__________________________

CHRYSTA L. CASTAÑEDA
State Bar No. 15325625
Email: ccastaneda@lockelord.com
A. SHONN BROWN
State Bar No. 24007164
Email: abrown@lockelord.com
SCOTT K. KOELKER
State Bar No. 24065569
Email: skoelker@lockelord.com
LOCKE LORD BISSELL & LIDDELL LLP
2200 Ross Avenue, Suite 2200
Dallas, Texas 75201
(214) 740-8000 (Telephone)
(214) 740-8800 (Facsimile)

ATTORNEYS FOR DEFENDANT

THE EPISCOPAL SCHOOL OF DALLAS, INC

CERTIFICATE OF SERVICE

The undersigned certifies that a true and correct copy of this document was served in
accordance with the Texas Rules of Civil Procedure upon all counsel of record on 28 April 2011
and addressed to each as follows:

Charla G. Aldous
Brent R. Walker
ALDOUS LAW FIRM
2311 Cedar Springs Road, Suite 200
Dallas, Texas 75201
Fax: 214-526-5525
/s/ Scott K. Koelker

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SUBJECT TO DAMAGES CAPS—PAGE 18
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