Smith v. Tilton

• Citation: 3 S.W.3d 77
• Decision Date: 25 August 1999
• Docket Number: No. 05-96-00071-CV,05-96-00071-CV
• Parties: (Tex.App.-Dallas 1999) NORMA SMITH, Appellant v. ROBERT "BOB" TILTON, INDIVIDUALLY; and ROBERT TILTON D/B/A/ ROBERT TILTON MINISTRIES; and WORD OF FAITH WORLD OUTREACH CENTER CHURCH, INC.; and WORD OF FAITH WORLD OUTREACH CENTER CHURCH, A SUCCESSOR THERETO, Appellees
• Court: Court of Appeals of Texas

Page 77

3 S.W.3d 77 (Tex.App.-Dallas 1999)

NORMA SMITH, Appellant v. ROBERT "BOB" TILTON, INDIVIDUALLY; and ROBERT TILTON D/B/A/ ROBERT TILTON MINISTRIES; and WORD OF FAITH WORLD OUTREACH CENTER CHURCH, INC.; and WORD OF FAITH WORLD OUTREACH CENTER CHURCH, A SUCCESSOR THERETO, Appellees

No. 05-96-00071-CV

In The Court of Appeals Fifth District of Texas at Dallas

August 25, 1999

On Appeal from the 101st Judicial District Court Dallas County, Texas Trial Court Cause No. 92-05197-E

[Copyrighted Material Omitted]

Before Justices Ovard, Whittington, and Moseley

O P I N I O N

Opinion By Justice Moseley

Appellant Norma Smith filed suit against appellees Robert "Bob" Tilton, individually; Robert Tilton d/b/a Robert Tilton Ministries; Word of Faith World Outreach Center Church, Inc.; and its successor, Word of Faith World Outreach Center Church. She asserted a number of tort and statutory causes of action arising from various representations allegedly made by appellees. These representations can be characterized as: (1) representations made as appellees (in appellant's words) engaged in "extensive television marketing and extensive mail propaganda . . . proph[esying] many cures" and soliciting pledges and contributions; (2) representations made in a mailing addressed to appellant's husband, Tommie, that was sent and received after Tommie's death and promised Tommie a "miracle day"; and (3) representations made in two dun letters asserting that Tommie, after his death, had pledged or vowed a contribution to the church. The trial court ultimately granted summary judgment against appellant on all of her claims. She appeals, asserting seven points of error.

We conclude the statements made in the course of the first two factual episodes described above (the television broadcasts and mail marketing and the "miracle day" literature) are representations of appellees' religious beliefs and are therefore constitutionally protected from judicial scrutiny. However, the statements made in the two dun letters (that Tommie pledged or vowed a contribution after his death) are not representations of appellees' religious beliefs and are not constitutionally protected from judicial scrutiny. For these and other reasons set forth below, we affirm in part and reverse and remand in part the trial court's judgment.

FACTUAL BACKGROUND

When we review a summary judgment, we accept as true evidence in favor of the nonmovant, indulging every reasonable inference and resolving all doubts in the nonmovant's favor. ¹ In addition, we accept as true evidence in support of the motion if not controverted. ² From this perspective, we review the evidence before the trial court.

In 1990, appellant and her husband, Tommie, watched appellees' television broadcasts, received mail from appellees, and became followers of the Word of Faith World Outreach Center Church pastored by Tilton. As a result of appellant's and Tommie's telephone calls to the church, Internal Data Management, Inc. (IDM), which contracted to provide data processing services to the church, opened separate "partner records" for appellant and Tommie. IDM individually numbered each partner record and recorded on the partner records the mailings sent and received by IDM.

The first time appellant called the church's prayer line, she asked the prayer minister answering the call to pray for herself and her family. Appellant made a second call to pledge $100 and gave the church her name and address. She called the church's prayer line for the third time on October 13, 1990, the day Tommie died. She told the prayer minister she needed prayer because Tommie, a follower of the church, had passed away. Appellant and the prayer minister prayed together.

In January 1991, appellant received literature from the church promising Tommie a "miracle day" and soliciting a contribution. Appellees' literature included the following statements: "Tommie, this [January 23, 1991] is your miracle day!" "This is your miracle launch date into your decade of miracles." "Get ready to receive your miracles." Appellant stated she suffered severe emotional distress because the literature she received promised "a miracle day" for Tommie when he was already dead.

Appellant sent no money in response to this literature. Instead, she made a fourth call, this time to the church and not to the prayer line. She told the person who answered that she had already reported Tommie had passed away and asked the church not to send any more church literature addressed to her or to Tommie.

Nevertheless, in February and March 1991, appellant received duns for money supposedly pledged or vowed by Tommie on December 21, 1990, about two months after he died. These two identical pledge/vow letters were addressed to Tommie and included his partner number. Each letter stated that Tommie had made a pledge/vow of $100 on December 21, 1990 (approximately two months after his death) and that the pledge/vow remained unpaid. Each letter then included telephone numbers and business hours for "Partner Relations." Following this information, each letter included spaces for offerings toward previous pledge/vows, additional pledge/vows, and tithes. Each letter then had a space for prayer requests and directed the reader to testimonies on the back of the letters from persons who "vow[ed] and pray[ed]." Each letter closed with a request to return the statement with the next "Seed Faith offering" and an invitation to attend appellees' worship service. Although appellant did not send any money in response to these letters, she claims they also caused her severe emotional distress. Appellant continued to receive literature from the church until April 1992, when she filed suit against appellees.

IDM's records for Tommie indicated he first contacted the church on September 7, 1990, and his partner record was opened September 12, 1990. IDM sent Tommie the church's introductory ministry materials, which were sent to all new partners. A partner reply letter (coded with Tommie's partner number) was included with the introductory materials; this letter was returned to IDM, along with ten cents. Another partner reply letter, with Tommie's partner number coded on it, was sent to Tommie on December 10, 1990 (after his death on October 13, 1990). According to IDM, this coded letter was returned to IDM on December 21, 1990, with a pledge in the amount of $100.

IDM's records regarding Tommie also showed that IDM mailed its last ministry letter to Tommie on June 10, 1991. Because IDM did not receive a further partner response with Tommie's number, IDM's computer program automatically deleted Tommie's partner number. IDM's records reflected that Tommie did not receive ministry mailings after his partner number was deleted. According to the records, IDM was notified for the first time that Tommie was deceased on April 23, 1992.

IDM's records regarding appellant indicated she first contacted the church on November 21, 1990, when she called the phone center and made a pledge or vow of $100. Her partner record also shows that she received free ministry materials in November 1990 and April 1991. IDM received a partner reply letter coded with appellant's partner number and a prayer request on April 18, 1991; because IDM received no further responses, appellant's partner number was automatically deleted from further ministry mailings. On April 23, 1992, her partner record was coded "lockout," which meant that IDM would not send further mailings. IDM's president stated in an affidavit that "IDM also first received notification on that date that [Tommie] had a separate partner record."

PROCEDURAL BACKGROUND

Appellant's original petition generally asserted that appellees: (1) engaged in "extensive television marketing and extensive mail propaganda . . . proph[esying] many cures" and soliciting pledges and contributions; (2) sent appellant the "miracle day" publications; and (3) sent appellant two dun letters asserting that Tommie had pledged or vowed a contribution to the church after his death. Based on each of these three factual episodes, she asserted the following causes of action against appellees: (1) intentional and negligent infliction of emotional distress; (2) intentional and negligent misrepresentation; (3) fraud; (4) breach of fiduciary duty; and (5) violations of the Texas Deceptive Trade Practices - Consumer Protection Act (DTPA). Appellant alleged that appellees' acts constituting negligent infliction of emotional distress "were done under gross circumstances as to constitute gross negligence." She also sued for punitive damages under her cause of action for negligent misrepresentation.

On May 11, 1992, appellees moved for summary judgment ("the initial motion"). Appellees asserted that all of appellant's causes of action were based on religious speech, which was protected by the United States and Texas Constitutions, and that appellant could not establish a cause of action for fraud because the First Amendment prohibited a court from inquiring into the falsity of religious beliefs. (Appellees did not specifically assert that state constitutional grounds barred appellant's causes of action for fraud.) Appellees also argued the DTPA did not apply because they were not engaged in trade or commerce nor was appellant a consumer, as those terms were statutorily defined.

Based on the initial motion, on March 5, 1993, the trial court granted partial summary judgment for appellees on all of appellant's causes of action except intentional and negligent infliction of emotional distress; later, the court modified its partial summary judgment to reinstate appellant's fraud causes of action and dismiss her negligent infliction of emotional distress claims.

Thereafter, appellant filed a "first amended original petition." She generally recounted the three factual episodes described above, albeit with some differences in description. Based on these three...