                      COURT OF APPEALS
                       SECOND DISTRICT OF TEXAS
                            FORT WORTH

                           NO. 02-10-00434-CV


ALLEN SCOTT                                        APPELLANT

                                    V.

CHRISTIAN METHODIST                                APPELLEES
EPISCOPAL CHURCH, SENIOR
BISHOP WILLIAM GRAVES, AND
BISHOP KENNETH WAYNE
CARTER
                                   AND

BISHOP KENNETH WAYNE                               APPELLANT
CARTER

                                    V.

ALLEN SCOTT                                         APPELLEE


                                 ----------

        FROM THE 48TH DISTRICT COURT OF TARRANT COUNTY

                                 ----------
                      MEMORANDUM OPINION1
                                 ----------


    1
     See Tex. R. App. P. 47.4.
                                 I. Introduction

      Bishop Kenneth Wayne Carter and Allen Scott separately appeal the trial

court‘s judgment in this case, which included a judgment on the jury verdict in

favor of Scott and against Carter and a judgment notwithstanding the verdict

(JNOV) in favor of Christian Methodist Episcopal Church (the Church).2         We

affirm.

                    II. Factual and Procedural Background

      Scott was a licensed local preacher for the Church‘s Eighth Episcopal

District (Dallas). Carter, Bishop for the Church‘s Tenth Episcopal District,3 asked

Scott to come to his home, which Scott asserted was the Tenth Episcopal

District‘s office, to interview for a position as Carter‘s driver.     During this

―interview,‖ a sexual encounter occurred between the men, which Carter

asserted was consensual and which Scott asserted was not.

      According to Scott, Carter asked him to change a light bulb in a storage

closet. When he bent down to change the light bulb, Carter was beside him, but

when he went to unscrew a second light bulb, Carter was behind him. Scott then

felt his pants being pulled down by Carter. Scott turned around, and Carter

grabbed Scott‘s head and put his penis in Scott‘s mouth. He ejaculated on Scott

      2
       No question answered by the jury established liability as to Senior Bishop
William Graves, and he is not a party to this appeal.
      3
       At the time, the Tenth Episcopal District encompassed Haiti, Jamaica,
West Africa, Nigeria, Liberia, and Ghana. Carter testified that he would visit
these countries at least four times a year.


                                        2
and into Scott‘s mouth ―within five to ten seconds.‖ Scott testified that Carter

instigated the conduct.

      According to Carter, Scott instigated the conduct and was the ―aggressor.‖

Carter stated that he recalled massaging Scott‘s shoulder after he finished

removing the light bulbs, then Scott touched Carter, and they moved to the couch

―where the action took place.‖ Carter testified that he masturbated in front of

Scott and that Scott then proceeded to perform oral sex on Carter. Carter said

he ejaculated into his hand and not on Scott or in Scott‘s mouth.

      Scott sued Carter, the Church, and Senior Bishop William Graves for

negligence, negligence per se, gross negligence, and malice.4 The jury found:

(1) Carter was acting within the scope and course of his employment with the

Church; (2) the Church‘s negligence proximately caused the occurrence; (3)

Carter assaulted Scott; (4) the Church was 25% liable and Carter was 75%

liable; and (5) Scott was entitled to $350,000 for past mental anguish and

$100,000 for future mental anguish. In response to the parties‘ post trial motions,

the trial court entered judgment in favor of Scott against Carter and entered take

nothing judgments in favor of the Church and Senior Bishop William Graves.

These appeals followed.




      4
       Scott‘s allegations included negligent hiring, retention, and supervision.


                                         3
                                III. Carter’s Issues

      In three issues, Carter argues that the evidence is legally and factually

insufficient to support the jury‘s finding that he assaulted Scott, that the evidence

is legally insufficient to support Scott‘s mental anguish damages, and that the

evidence is factually insufficient to support Scott‘s mental anguish damages such

that the trial court should have ordered a remittitur.

A. Sufficiency Standards of Review

      We may sustain a legal sufficiency challenge only when (1) the record

discloses 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 establishes conclusively the opposite of a vital

fact. Uniroyal Goodrich Tire Co. v. Martinez, 977 S.W.2d 328, 334 (Tex. 1998),

cert. denied, 526 U.S. 1040 (1999); Robert W. Calvert, “No Evidence” and

“Insufficient Evidence” Points of Error, 38 Tex. L. Rev. 361, 362–63 (1960). In

determining whether there is legally sufficient evidence to support the finding

under review, we must consider evidence favorable to the finding if a reasonable

factfinder could and disregard evidence contrary to the finding unless a

reasonable factfinder could not. Cent. Ready Mix Concrete Co. v. Islas, 228

S.W.3d 649, 651 (Tex. 2007); City of Keller v. Wilson, 168 S.W.3d 802, 807, 827

(Tex. 2005). Anything more than a scintilla of evidence is legally sufficient to




                                          4
support the finding. Cont’l Coffee Prods. Co. v. Cazarez, 937 S.W.2d 444, 450

(Tex. 1996); Leitch v. Hornsby, 935 S.W.2d 114, 118 (Tex. 1996).

      When reviewing an assertion that the evidence is factually insufficient to

support a finding, we set aside the finding only if, after considering and weighing

all of the evidence in the record pertinent to that finding, we determine that the

credible evidence supporting the finding is so weak, or so contrary to the

overwhelming weight of all the evidence, that the answer should be set aside and

a new trial ordered. Pool v. Ford Motor Co., 715 S.W.2d 629, 635 (Tex. 1986)

(op. on reh‘g); Cain v. Bain, 709 S.W.2d 175, 176 (Tex. 1986); Garza v. Alviar,

395 S.W.2d 821, 823 (Tex. 1965). When conducting a factual sufficiency review,

a court of appeals must not merely substitute its judgment for that of the trier of

fact. Golden Eagle Archery, Inc. v. Jackson, 116 S.W.3d 757, 761 (Tex. 2003).

The trier of fact is the sole judge of the credibility of witnesses and the weight to

be given to their testimony. Id.

      Further, we review a complaint that damages are excessive for factual

sufficiency. See Maritime Overseas Corp. v. Ellis, 971 S.W.2d 402, 406 (Tex.)

(citing Rose v. Doctors Hosp., 801 S.W.2d 841, 847–48 (Tex. 1990), and Pope v.

Moore, 711 S.W.2d 622, 624 (Tex. 1986)), cert. denied, 525 U.S. 1017 (1998). If

we find the evidence to be factually sufficient, we are not at liberty to order a

remittitur. Wal-Mart Stores, Inc. v. Odem, 929 S.W.2d 513, 528 (Tex. App.—San

Antonio 1996, writ denied) (op. on reh‘g); see also Larson v. Cactus Util. Co., 730

S.W.2d 640, 641 (Tex. 1987) (stating that if part of a damage verdict lacks


                                         5
sufficient evidentiary support, the proper course is to suggest a remittitur of that

part of the verdict). Whether damages are excessive and whether a remittitur is

appropriate are factual determinations that are final in this court.       Ellis, 971

S.W.2d at 407; see also Tex. Const. art. V, § 6; Tex. Gov‘t Code Ann.

§ 22.225(a) (West 2004 & Supp. 2011); Tex. R. App. P. 46.3, 46.5.

B. Assault

      Carter challenges the legal and factual sufficiency of the evidence to

support the jury‘s assault finding in this variation of the classic ―he said–she said‖

dispute. As previously recounted, we may not substitute our judgment for that of

the trier of fact, who is the sole judge of the credibility of witnesses and the

weight to be given their testimony. See Golden Eagle Archery, 116 S.W.3d at

761. This is so because we are not witness to the demeanor of those testifying—

their voice inflections, body movements, pauses in speech, and other overall

visual and verbal cues—which can affect the fact finder‘s determination of the

veracity of their testimonies. See Kreitzman v. Woodford Livestock Transp., No.

02-04-00022-CV, 2005 WL 2897644, at *3 (Tex. App.—Fort Worth Nov. 3, 2005,

no pet.) (mem. op.) (stating that the jury, not the appellate court, is in the best

position to judge the credibility of the evidence because ―[w]e cannot discern

facial expressions, hear voice inflections, observe body language or witness

overall demeanor from a cold black and white record‖).

      Scott recounted a factual scenario pointing to an assault, and Carter

recounted a factual scenario pointing to a consensual encounter. As there was


                                          6
no third party witness or independent evidence supporting either version,5 it was

up to the trier of fact to determine the truth from their testimonies. The jury chose

to believe Scott, and the evidence offered by Scott that an assault occurred was

more than a scintilla. See Cazarez, 937 S.W.2d at 450. Further, this is not a

factual dispute in which we will intervene, as we cannot say that the jury‘s verdict

in favor of Scott is supported by evidence that is so weak, or so contrary to the

overwhelming weight of all the evidence that the jury‘s answer to the assault

inquiry should be set aside and a new trial ordered. See Pool, 715 S.W.2d at

635. Therefore, we conclude that the evidence is legally and factually sufficient

to support the jury‘s assault finding, and we overrule Carter‘s second issue.

C. Mental Anguish and Remittitur

      In his first and third issues, Carter claims that the evidence is legally and

factually insufficient to support the finding that Scott suffered mental anguish

damages and that the trial court should have ordered a remittitur.

      With regard to mental anguish damages, the Texas Supreme Court has

stated,

                   The term ―mental anguish‖ implies a relatively
             high degree of mental pain and distress. It is more than
             mere     disappointment,    anger,    resentment      or
             embarrassment, although it may include all of these. It
             includes a mental sensation of pain resulting from such
             painful emotions as grief, severe disappointment,


      5
        At trial, Scott produced DNA results showing Carter‘s semen was
identified on his shirt, but this does not support or disprove either scenario.


                                         7
             indignation, wounded pride, shame, despair and/or
             public humiliation.

               This definition requires a jury to distinguish between
      disappointment         and     severe     disappointment,    between
      embarrassment and wounded pride, between anger and indignation.
      It is little wonder that courts and juries have found this and similar
      definitions of mental anguish ―somewhat unwieldy.‖

            When a challenge is made to the sufficiency of the evidence to
      go to the jury or to support the jury‘s finding, the same type of
      problem persists. The reviewing court must distinguish between
      shades and degrees of emotion. These distinctions are critical
      under our substantive law because evidence of lesser reactions
      cannot support an award of mental anguish damages.

Parkway Co. v. Woodruff, 901 S.W.2d 434, 444 (Tex. 1995) (citations omitted). If

a claimant fails to present direct evidence of the nature, duration, or severity of

his anguish, we apply traditional ―no evidence‖ standards to determine whether

the record reveals any evidence of a high degree of mental pain and distress that

is more than ―mere worry, anxiety, vexation, embarrassment, or anger‖ to support

any award of damages. Id.; see also Serv. Corp. Int’l v. Guerra, 348 S.W.3d 221,

231 (Tex. 2011) (―Even when an occurrence is of the type for which mental

anguish damages are recoverable, evidence of the nature, duration, and severity

of the mental anguish is required.‖).

      Further, the court has also stated,

              Not only must there be evidence of the existence of
      compensable mental anguish, there must also be some evidence to
      justify the amount awarded . . . . While the impossibility of any exact
      evaluation of mental anguish requires that juries be given a measure
      of discretion in finding damages, that discretion is limited. Juries
      cannot simply pick a number and put it in the blank. They must find
      an amount that, in the standard language of the jury charge, ―would


                                            8
     fairly and reasonably compensate‖ for the loss. Compensation can
     only be for mental anguish that causes ―substantial disruption in . . .
     daily routine‖ or ―a high degree of mental pain and distress‖. There
     must be evidence that the amount found is fair and reasonable
     compensation, just as there must be evidence to support any other
     jury finding. Reasonable compensation is no easier to determine
     than reasonable behavior—often it may be harder—but the law
     requires factfinders to determine both. And the law requires
     appellate courts to conduct a meaningful evidentiary review of those
     determinations.
Saenz v. Fidelity & Guar. Ins., 925 S.W.2d 607, 614 (Tex. 1996) (citations

omitted) (stating that the evidence was insufficient to support the jury‘s $250,000

mental anguish award when the only evidence pertaining to mental anguish was

Saenz‘s testimony that she worried that she and her husband would lose their

home and that they could not afford their future medical bills).

      Scott testified that he was shocked by the assault and was still shocked at

the time of the trial and that he felt less human after the encounter. He testified

further that he was taking medication; had been seeing a psychologist since the

incident; had problems eating, sleeping, and trusting other people as a result of

the assault; was being regularly tested for HIV and other sexually transmitted

diseases;6 and felt that his faith had been shaken. Scott‘s wife confirmed that

Scott had problems eating and sleeping, that he suffered from anxiety, and that

he underwent regular blood tests to check for HIV.

      Scott also testified that he did not feel like his wife and children looked at

him the same now and that his psychologist had suggested that he leave the

      6
      Scott said that because Carter regularly traveled to Africa, he was
concerned that if Carter ―ha[d] something, that he could have given it to‖ him.


                                         9
Church because some of the membership would no longer talk with him, look at

him, or pray with him. During Scott‘s cross-examination, he admitted that he did

not report the assault to the police until around thirty days after it occurred. 7

Scott did not testify about any economic loss as a result of the assault. Further,

when given an opportunity to describe her husband‘s anxiety, Scott‘s wife could

only describe him as ―restless.‖    However, she also testified that since the

incident in March 2007, Scott had been depressed to the point that she felt that

she was ―losing [her] best friend,‖ and she described his inability to sleep for

more than a few hours at a time and said that he had developed stomach

problems.

      Based on the evidence set out above, the jury could have found that Scott

suffered from mental anguish.      We conclude that the evidence is legally

sufficient. See Cazarez, 937 S.W.2d at 450; see also Fifth Club, Inc. v. Ramirez,

196 S.W.3d 788, 797 (Tex. 2006) (holding that the evidence was legally sufficient

to support jury‘s award of future mental anguish damages when Ramirez and his

wife testified that Ramirez continued to be depressed, humiliated, non-

communicative, angry, and unable to sleep, that he continued to have headaches

and nightmares, and that his daily activities and relationships with his wife and

      7
      Carter also complains that Scott introduced no evidence of medical
expenses related to medical treatment or medication and did not identify the
medication he was taking. However, Scott explained his lack of medical expense
evidence by testifying that he received treatment at the Dallas VA Medical Center
due to his prior service in the Army. He was never asked to identify his
medication.


                                       10
daughter continued to be detrimentally affected almost two years after being

assaulted); O’Dell v. Wright, 320 S.W.3d 505, 514 (Tex. App.—Fort Worth 2010,

pet. denied) (holding that Wright presented legally sufficient evidence of

compensable mental anguish when she testified about the many occasions on

which she had experienced anxiety, nausea, shakes, and nightmares).

      Applying the factual sufficiency standard of review to the evidence

adduced at trial regarding the impact that the assault had on Scott, considering

the nature of the assault and Scott‘s testimony about the effect that it had on him

and his life, we cannot say that the evidence supporting the jury‘s finding of

Scott‘s mental anguish and damages is so weak or so contrary to the

overwhelming weight of all the evidence as would lead us to conclude that the

damages are excessive. See Pool, 715 S.W.2d at 635; O’Dell, 320 S.W.3d at

515 (concluding that the amount awarded was fair and reasonable based on the

plaintiff‘s testimony about the disruption to her life and the personal toll taken by

the events surrounding an assault and sexual harassment); see generally E. Tex.

Med. Ctr. EMS v. Nieves, No. 10-09-00055-CV, 2010 WL 5419003, at *1, 3–4

(Tex. App.—Waco Dec. 29, 2010, no pet.) (mem. op.) (affirming an award of

$750,000 for past physical pain and mental anguish and $250,000 in future

physical pain and mental anguish after an assault and sexual assault); Fort

Worth Cab & Baggage Co. v. Salinas, 735 S.W.2d 303, 304–05 (Tex. App.—Fort

Worth 1987, no writ) (affirming on remand a multi-million-dollar damages

award—which included mental anguish—against cab company after a cab driver


                                         11
raped, orally sodomized, and robbed a woman in front of her two children).

Therefore, we conclude that the evidence is factually sufficient to support Scott‘s

mental anguish damages, and we cannot say that the trial court should have

ordered a remittitur. We overrule Carter‘s first and third issues.

                                IV. Scott’s Issues

      In his two issues, Scott appeals the trial court‘s JNOV as to the Church,

contending that the trial court should have entered judgment against the Church

and the Senior Bishop in accordance with the jury‘s verdict. Scott argues that the

Church was aware of Carter‘s prior sexual misconduct, ―never should have hired

Bishop Carter, nor should the Church have sat silent while one of its Bishops

induced unknowing employees into the very situation that occurred on March 22,

2007.‖ He also complains that the trial court erred by disregarding the jury‘s

determination that Carter was working in the scope and course of his

employment such that the Church‘s negligence proximately caused the assault.

      The Church responds that the trial court‘s JNOV was appropriate because

there was no evidence that the assault was within the scope and course of

Carter‘s duties and that Carter‘s predatory actions were not foreseeable.

A. Standard of Review

      A trial court may disregard a jury verdict and render a JNOV if no evidence

supports the jury finding on an issue necessary to liability or if a directed verdict

would have been proper. See Tex. R. Civ. P. 301; Tiller v. McLure, 121 S.W.3d

709, 713 (Tex. 2003); Fort Bend Cnty. Drainage Dist. v. Sbrusch, 818 S.W.2d


                                         12
392, 394 (Tex. 1991).       A directed verdict is proper only under limited

circumstances: (1) when the evidence conclusively establishes the right of the

movant to judgment or negates the right of the opponent; or (2) when the

evidence is insufficient to raise a material fact issue. Prudential Ins. Co. of Am.

v. Fin. Review Servs., Inc., 29 S.W.3d 74, 77 (Tex. 2000); Playoff Corp. v.

Blackwell, 300 S.W.3d 451, 454 (Tex. App.—Fort Worth 2009, pet. denied) (op.

on reh‘g).

      To determine whether the trial court erred by rendering a JNOV, we view

the evidence in the light most favorable to the verdict under the well-settled

standards that govern legal sufficiency review.      See Ingram v. Deere, 288

S.W.3d 886, 893 (Tex. 2009); Wal-Mart Stores, Inc. v. Miller, 102 S.W.3d 706,

709 (Tex. 2003). We must credit evidence favoring the jury verdict if reasonable

jurors could and disregard contrary evidence unless reasonable jurors could not.

See Tanner v. Nationwide Mut. Fire Ins. Co., 289 S.W.3d 828, 830 (Tex. 2009);

Islas, 228 S.W.3d at 651.

B. Scope and Course of Employment

      The first question put to the jury was whether Carter acted in the scope

and course of his employment with the church when he asked Scott to meet with

him. Under the theory of respondeat superior, an employer can be vicariously

liable for the torts of an employee if the employee is acting within the scope and

course of his employment. Goodyear Tire & Rubber Co. v. Mayes, 236 S.W.3d

754, 757 (Tex. 2007). However, the employer is liable for its employee‘s tort only


                                        13
when the tortious act falls within the scope of the employee‘s general authority in

furtherance of the employer‘s business and for the accomplishment of the object

for which the employee was hired. Id. (quoting Minyard Food Stores, Inc. v.

Goodman, 80 S.W.3d 573, 577 (Tex. 2002)). If the employee deviates from the

performance of his duties for his own purposes, the employer is not responsible

for what occurs during that deviation. Id. (quoting Minyard, 80 S.W.3d at 577);

see also Sanders v. Casa View Baptist Church, 898 F. Supp. 1169, 1179 (N.D.

Tex. 1995) (noting that sexual misconduct by a member of the clergy is beyond

the cleric‘s scope of employment), aff’d, 134 F.3d 331 (5th Cir.), cert. denied, 525

U.S. 868 (1998); Doe v. S. Cent. Spanish Dist. of Church of God, No. 05-01-

01850-CV, 2002 WL 31296620, at *4 (Tex. App.—Dallas Oct. 14, 2002, no pet.)

(mem. op., not designated for publication) (stating that under Sanders, cleric‘s

sexual misconduct while pastor was beyond the scope of his employment).

Because the conduct at issue here was beyond the scope of Carter‘s position in

the Church as a bishop and was in no way engaged in for the benefit of the

Church, the trial court correctly granted the Church‘s motion for JNOV as to

whether Carter acted in the scope and course of his employment. We overrule

Scott‘s second issue.

C. Negligence

      The second jury question asked whether the negligence, if any, of the

Church proximately caused ―the occurrence in question.‖         Claims against an

employer for negligent hiring, retention, or supervision are based on direct, rather


                                        14
than vicarious, liability. Morris v. JTM Materials, Inc., 78 S.W.3d 28, 49 (Tex.

App.—Fort Worth 2002, no pet.). The main advantage to this type of claim is that

it does not require ―a finding that the employee was acting in the scope of his

employment when the tortious act occurred.‖ Wrenn v. G.A.T.X. Logistics, Inc.,

73 S.W.3d 489, 496 (Tex. App.—Fort Worth 2002, no pet.) (op. on reh‘g). ―[A]n

employer is liable for negligent hiring, retention, or supervision if it hires an

incompetent or unfit employee whom it knows, or by the exercise of reasonable

care should have known, was incompetent or unfit, thereby creating an

unreasonable risk of harm to others‖ that proximately causes damages. Morris,

78 S.W.3d at 49; see also Ramirez, 196 S.W.3d at 796 (―Negligence in hiring

requires that the employer‘s ‗failure to investigate, screen, or supervise its

[hirees] proximately caused the injuries the plaintiffs allege.‘‖ (quoting Doe v.

Boys Clubs of Greater Dallas, Inc., 907 S.W.2d 472, 477 (Tex. 1995)). Absent a

showing of foreseeability, an employer cannot be liable as a matter of law for

negligent hiring, supervision, or retention. Wrenn, 73 S.W.3d at 496.

      1. Evidence

      Pastor Woodrow Foreman testified that in the 1980s or 1990s, he had

heard that Carter ―liked boys . . . he was gay,‖ and he referenced an incident that

occurred in Mississippi in 1990, in which a young male musician stood up on

Sunday before the church service was over and said he wanted Carter to stop

bothering him. Foreman also stated he recalled mentioning to Scott a long time

before the ―interview‖ that he had heard Carter was gay and told Scott at some


                                        15
point ―to be careful‖ because of the rumors he had heard.8 However, he also

testified that he was not worried that Carter would attempt to rape Scott. Once

Foreman heard about the incident from Scott, he did not report it to anyone but

      8
        The timing of the ―be careful‖ statement is susceptible to different
interpretations from Foreman‘s testimony, but it can be construed to have
occurred on the day of the assault.

      Q. Okay. Do you recall—let‘s kind of focus on the actual incident
      that occurred between Brother Scott and Bishop Carter.

            Brother Scott tells us that you had mentioned to him or he had
      mentioned to you something about talking with Carter about
      becoming his driver. Do you recall that?

      A.       I remember that.

      Q. And that he says that you had advised him that he—to be
      careful, but that—not to worry about it, but to be careful because you
      had heard that Bishop Carter was gay. Is that accurate?

      A. I had talked to him about this long before then.

      Q. Okay. And did you tell him to be careful?

      A. I think I did.

      Q. Okay. And then did you know that he was going over to talk to
      Bishop Carter about being a driver?

      A. I did. He called me that day.

      Q. Okay. When you told him about—to be careful, what did you say,
      do you recall?

      A. I don‘t remember exactly what I said. I just told him to be careful

However, Scott testified Foreman warned him to be careful on the day of the

―interview.‖


                                         16
―may have talked to some people about it.‖ Foreman was concerned about the

Church‘s reputation and said that it was discussed with Scott that ―this was not

about him nor Bishop Carter but the CME Church.‖

      Reverend Van Carl Williams stated that Scott called him after the incident

and told him that Carter had ejaculated on him and asked Williams what he

should do. Williams told him that no matter what he decided to do, as his pastor,

he would support him.       During cross-examination, Williams said that he had

heard rumors about Carter‘s sexuality:

      Q. Okay. And have you heard from the Church or anywhere else
      rumors that have been going on about Bishop Carter?

      A. Have I heard from . . .

      Q. From the Church or anywhere else, dealings with people in the
      Church, any rumors about Bishop Carter?

      A. Yes.

      Q. And have you heard rumors about his sexuality?

      A. Yes.

      Q. Okay. And have you heard that just from a few people, many
      people?

      A. Few and many are—

      Q. Kind of subjective, right?

      A. Yes, subjective.

      Q. Okay. Fair enough. Fair enough.

      Let me ask you this—



                                         17
       A.     Have I heard it from more than three people, yes.

       Q. Okay.

       A. I don‘t know if that‘s few or many.

       Q. Okay. Okay. Now, do you also know that there are people in the
       Church who don‘t like Bishop Carter because of his sexuality?

       A.     Yes.

       Elder Ernest Williams testified that he had heard rumors that Carter was

homosexual but that he never investigated the rumors, stating that ―it wasn‘t [his]

job to investigate.‖ He also testified that no background check was done on

Carter. Senior Bishop William Graves also verified that a background check was

not done on Bishop Carter; however, ―[e]very four years, when [Carter] makes his

report to the General Conference, his character is looked at.‖

       Claude Parker and Michelle Benson testified that they had worked with

Carter when all three worked for the Fort Worth Independent School District

(ISD) as band directors. In 1999, Parker‘s and Carter‘s bands took a trip to

Disneyworld, and the two men shared a room at a resort. Parker was late getting

to their room on the first night, and when he walked in, he saw Carter

masturbating on the bed. Parker immediately walked out of the room and called

his ―pyramid,‖ which consisted of Benson and his principal, to report what had

happened; he filed a complaint with the Fort Worth ISD when they returned from

the trip.




                                         18
      Benson had hired Carter as an assistant high school band director. She

testified that she received a complaint that Carter was ―offering young boys

money for sexual favors‖ at a band camp at Prairie View A&M.9 She reported

this incident and filed a complaint against Carter with the Fort Worth ISD. During

her testimony, Benson also referred to other complaints that she had received

from young men about Carter, but she did not go into detail. She also stated that

none of these complaints indicated that Carter had forced himself on any of

them. Neither Parker nor Benson was associated with the Church, and there

was no evidence that they had communicated with anyone with the Church.

      Carl Calhoun testified that in the early 1990s, he was involved in a Gospel

Fest with Carter, but like Parker and Benson, he had no connection with the

Church. Carter‘s church had arranged to pay Calhoun and his fellow musicians

for providing musical accompaniment for a choir. Calhoun went to pick up the

check at Carter‘s church, and after a tour of the church, Carter made an advance

on him. In the church‘s bathroom, Calhoun opened a stall door and saw Carter

―doing . . . something to himself,‖ which appeared to be masturbation. Calhoun

said during cross-examination that he remembered Carter grabbing him and

pulling at his clothes. Calhoun did not report this incident to the police or to

anyone with the Church.

      2. Analysis

      9
      Benson clarified that the ―boys‖ in question were college students who
helped run the band camp.


                                       19
         The jury was charged that ―[i]n order to be a proximate cause, the act or

omission complained of must be such that a person using ordinary care would

have foreseen that the event, or some similar event, might reasonably result

therefrom.‖ Therefore, an affirmative finding of negligence by the jury required

evidence that it was foreseeable by the Church clergy that Carter would assault

Scott on the occasion in question. Assault was defined for the jury as follows, ―A

person commits an assault if without consent he intentionally or knowingly

causes physical contact with another when he or she knows or should

reasonably believe that the other will regard the contact as offensive or

provocative.‖

         Reviewing the evidence known to the Church‘s clergy concerning Carter‘s

attempted physical relationships with other males, and bearing in mind the

definition of assault and that the only evidence of Carter actually touching

another individual came from Carl Calhoun, who was not associated with the

Church and who did not report the incident to the police or the Church, we hold

that there was no evidence that it was foreseeable to the Church that Carter

would assault Scott.     The trial court therefore correctly granted the Church‘s

motion for JNOV as to the second jury question, and we overrule Scott‘s first

issue.




                                         20
                               V. Conclusion

      Having overruled all of Scott‘s and Carter‘s issues, we affirm the trial

court‘s judgment.



                                                BOB MCCOY
                                                JUSTICE


PANEL: DAUPHINOT, GARDNER, and MCCOY, JJ.

DELIVERED: January 5, 2012




                                     21
