Opinion issued October 22, 2013.




                                       In The

                                 Court of Appeals
                                      For The

                          First District of Texas
                            ————————————
                                 NO. 01-12-00189-CV
                            ———————————
    BETH BRYANT, ATASCOCITA UNITED METHODIST CHURCH AND
           THE WEEKDAY LEARNING CENTER, Appellants
                                         V.
      S.A.S. AND L.O.S., INDIVIDUALLY AND AS NEXT FRIENDS OF
          E.R.S. AND E.L.S., THEIR MINOR CHILDREN, Appellees


                    On Appeal from the 55th District Court
                            Harris County, Texas
                      Trial Court Case No. 2010-41141

                                    OPINION

       The Smiths hired sixteen-year-old Morgan Bryant to babysit their children.1

Morgan’s babysitting services were advertised in a paper flyer placed in the


1
       “Smith” is a pseudonym.
backpacks of the Smiths’ children. After hiring Morgan several times to babysit,

the Smiths learned that Morgan had sexually assaulted their children. The Smiths

reported the crime to the authorities, who pursued criminal charges against

Morgan.   Morgan pleaded guilty to felony sexual assault of a child, and the

criminal court assessed twelve years’ incarceration as punishment.

      On behalf of themselves and their children, the Smiths sued Morgan, the

Atascocita United Methodist Church, which operated the Weekday Learning

Center, the childcare center itself (collectively, the Church), and Beth Bryant,

Morgan’s mother, who also was a teacher at the childcare center.          The jury

returned a verdict in favor of the Smiths. The Smiths’ civil cause of action for

assault and battery against Morgan provides the basis for most of the jury’s

damages award. Morgan appeared at trial solely through his deposition, and he

does not appeal the judgment against him. The Smiths, however, also recovered

damages against Beth Bryant and the Church, on the basis that these defendants

violated the Texas Deceptive Trade Practices Act (DTPA), by: (1) misrepresenting

Morgan’s child care experience; and (2) failing to disclose his psychological

condition at the time the Smiths received the flyer advertising his babysitting

services. This appeal arises from the civil judgment entered on those DTPA

findings in favor of the Smiths and against the Church and Beth Bryant.




                                        2
      Beth Bryant and the Church contend that the trial court erred in entering a

judgment against them, because (1) no evidence supports the jury’s findings that

Bryant and the Church’s DTPA violations caused the Smiths’ damages; and (2) in

any event, the DTPA does not afford any recovery for economic or mental anguish

damages that flow from purely personal injury claims. In a cross-appeal, the

Smiths contend that the trial court erred in apportioning its attorney’s fee award.

Following the Texas Supreme Court’s analysis in Doe v. Boys Clubs of Greater

Dallas, 907 S.W.2d 472 (Tex. 1995), we hold that no evidence supports the jury’s

DTPA causation finding against the Church and Beth Bryant; therefore, we reverse

the judgment. In light of our disposition, we need not reach the other issues

presented in this appeal.

                                       Background


I.    Facts giving rise to the suit.

      In the summer of 2007, the Smiths enrolled their two young sons in the

childcare center. Beth Bryant’s daughter, Kelsey, a twenty-year-old college

student, worked at the center as a teacher and swimming instructor in a summer job

between her junior and senior years of college.




                                           3
      Beth Bryant herself spent the first part of the summer of 2007 teaching

Vacation Bible School at the Church.           She had five years’ prior experience

working at the childcare center and wished to return to work there. She applied

and, in August, the center rehired her to work as a teacher.         Bryant’s class

contained the younger Smith boy. Mrs. Smith developed a warm rapport with

Bryant and appreciated Bryant’s caring interaction with her son.

      After Kelsey returned to college in the fall, she asked her mother to circulate

a flyer to school parents to let them know that she would be available for

babysitting during her winter break.       The school often circulated flyers that

advertised events and personal services by placing them in the children’s

backpacks. Under the school’s policy, it pre-screened each proposed flyer. If the

school approved the flyer, it charged $20 to circulate it.

      In late fall, Beth Bryant circulated an approved flyer offering Kelsey’s

babysitting services. The flyer explained that Kelsey was Bryant’s daughter, that

she had been a “Summer School Fish” teacher at the center, that she was CPR-

certified, and that she would provide references upon request. The Smiths hired

Kelsey to babysit for their sons during the winter break.

      Near the end of 2007, Bryant prepared a similar flyer, this time advertising

Morgan’s availability for babysitting services. The flyer read:




                                           4
                             HELP AROUND THE HOUSE?

                                     (Documented Day Labor)

                  POSSIBLE BABYSITTER AT YOUR SERVICE

                     Need someone while WLC is on break for the Holidays?

                                  MORGAN BRYANT

                      HHS Junior – Eagle Scout – IB Student (College Prep)

                  16 years old – driver’s license – can provide own transportation

                             (Beth Bryant’s son – T/Th Bee’s Teacher)

                               Part-Time WLC Summer School Help

                               WLC Vacation Bible School Worker

              Need someone to help with the kids while you work around the house?

                            Someone to watch the kids while you shop?

                                 Great companion for your ‘boys’!

          Call and arrange for a meeting and see if I can help you out during the holidays!

The childcare center approved Bryant’s flyer and gave permission to her to

circulate it. The flyer went home in the children’s backpacks, along with other

materials that the school distributed.

      The Smiths’ experience with Kelsey’s babysitting services was a good one;

they were disappointed to learn that she would not be available after she returned

to college at the beginning of January. During Mrs. Smith’s conversation with

Bryant about Kelsey’s imminent return to college, Bryant mentioned to Mrs. Smith

that “Morgan babysits,” and gave her another copy of Morgan’s flyer. Though the
                                                 5
flyer states that Morgan was part-time summer help and a vacation bible school

worker, at the time Beth Bryant gave the Smiths the flyer, the childcare center had

not yet employed Morgan. It also had not performed a criminal background check

on him, and it had not trained him to work with children. The childcare center had,

however, offered the possibility that Morgan could work part time the following

summer as summer school help.

      The Smiths together discussed the possibility of hiring Morgan. Despite

some doubts, they decided to do so, because, according to the flyer, he had

experience working with children and, in particular, experience working at the

childcare center.   They did not ask Morgan directly whether he had such

experience.

      The Smiths hired Morgan in the first week of January 2008. Morgan went to

the Smiths’ home while the Smiths were present, and Mrs. Smith “ended up paying

Morgan to come to the house to spend time with us, interact with the boys, [and]

get to know them, because my overriding concern was just the transition of them

getting to know someone new.” Mrs. Smith’s first impression of Morgan was not

positive, but she thought, “okay, maybe he’s just not good with grown-ups,” and

that “he must be good with kids or the center wouldn’t have hired him.”

      Morgan first babysat alone with the boys at the Smith’s home a couple of

weeks later. He babysat for the Smiths approximately five to ten times between

                                        6
January and June 2008. Toward the end of that period, Mrs. Smith noticed a

change in Morgan’s attitude. It caused her concern, and she decided to stop hiring

him.

       Meanwhile, following up on the center’s offer to employ Morgan that

summer, Morgan completed his application for summer employment at the center

in February 2008 and cleared a criminal background check. Morgan worked at the

center as a paid employee for one day, in late June. About then, the Smith boys

disclosed to their parents that Morgan had molested them while he was babysitting.

The Smiths contacted law enforcement, and Morgan was arrested. The childcare

center immediately discontinued Morgan’s employment.

       Morgan later admitted to having sexually assaulted the boys; he pleaded

guilty to felony charges. In his civil deposition for this case, Morgan testified that

the incidents of abuse occurred in March, April, and May of 2008. The criminal

court sentenced him to twelve years’ imprisonment. Before his arrest, Morgan had

no criminal history and no record of any school misconduct that would warrant

suspension.




                                          7
        A.     Morgan’s experience with children.

        Morgan had volunteer experience helping his mother at vacation bible

school and had helped his sister Kelsey in her classroom during the summer of

2007.      However, he had no experience babysitting or caring for children by

himself.

        The Church maintains a safe sanctuary training program in an effort to

protect children from, among other things, sexual predators. The written Church

policy requires that “[a]ll persons working with children and youth receive training

on Safe Sanctuary issues and . . . undergo a criminal background screening prior to

serving.” Because Morgan had not been employed by the childcare center at the

time the flyer was distributed, the childcare center had not completed a criminal

background check, nor had Morgan received safe sanctuary training. When the

Church completed the check in February, Morgan had no criminal history.

        B.     Morgan’s psychological history.

        Morgan was diagnosed with attention deficit disorder in the eighth grade,

for which he was prescribed medication. Between his freshman and junior years of

high school, Morgan’s parents discovered that he had viewed adult pornography on

the internet a few times, and they confronted him about it. After the first time, the

Bryants installed an internet filter. Morgan stopped viewing the pornographic sites

for a few months, but he later managed to work around the internet filter. The

                                         8
second and third times, they again lectured Morgan about the evils of pornography.

The Smiths’ expert psychologist testified that the vast majority of sixteen-year-old

boys have visited pornographic websites. She further opined, however, that an

adolescent boy whose parents caught him viewing pornography two or three times

in a three-year period would raise “a red flag.”

      In December 2007, Morgan was diagnosed with depression, for which his

physician, in consultation with a psychologist, prescribed an antidepressant.

Morgan began to receive regular psychological counseling. His depression came

to his mother’s attention when she learned that Morgan, uncharacteristically, had

skipped school because he was unprepared for class and was extremely stressed

about his academic performance. The medication and counseling appeared to

alleviate his condition. At that time, Morgan’s psychologist subjected Morgan to

clinical testing. Nothing in the results led the psychologist to suspect that Morgan

presented a danger to young children. During their many sessions, Morgan never

mentioned anything to his psychologist that would have led him to suspect that

Morgan had tendencies toward pedophilia or sexual deviancy. In the course of the

legal proceedings against him, however, Morgan admitted that he had begun to

have private thoughts about molesting young boys. He told no one about them—

not his doctors, his counselors, or anyone in his family.




                                          9
II.   Procedural history.

      Through their DTPA claim, Smiths sought their past and future counseling

and therapy expenses, the cost of repairing their home furnishings damaged by

evidence collection in the criminal investigation, lost earnings, and pain and mental

anguish.

      The jury found that:

      • Beth Bryant and the childcare center violated the DTPA by either
        “(a) Representing that Morgan had sponsorship, approval, status,
        affiliation, or connection that he did not have, or (b) Representing that
        services are or will be of a particular standard, quality, or grade if they
        were of another,” they did so knowingly, and Bryant did so intentionally.

      • In preparing the flyer, Beth Bryant knowingly and intentionally failed to
        disclose information and engaged in an unconscionable course of conduct
        “with the intention to induce [the Smiths] into a transaction they
        otherwise would not have entered into if the information had been
        disclosed.”

      • Bryant was acting in the scope of her employment in circulating the flyer.

      The jury apportioned responsibility as follows: five percent to the Church,

five percent to Bryant, and ninety percent to Morgan. The trial court entered

judgment on the jury’s findings. It awarded the Smiths their attorney’s fees and

apportioned them among the defendants according to the responsibility findings.

The trial court denied Bryant and the Church’s motion for judgment

notwithstanding the verdict, raising the issues now presented on appeal.




                                         10
                                   Discussion

      We first examine whether any evidence supports a finding that the

misrepresentations in the flyer caused the damages the trial court assessed against

the Church and Beth Bryant under the DTPA.

      A.    Standard of review

      Bryant and the Church challenge the trial court’s denial of their motion for

judgment notwithstanding the verdict, contending that no evidence supports the

jury’s finding that the representations in the babysitting flyer were a producing

cause of the Smiths’ damages. The test for legal sufficiency is “whether the

evidence at trial would enable reasonable and fair-minded people to reach the

verdict under review.” City of Keller v. Wilson, 168 S.W.3d 802, 827 (Tex. 2005).

Rulings on motions for jnov, if made on an evidentiary basis, are reviewed under

the same legal-sufficiency test we apply to other no-evidence challenges. See

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

City of Keller, 168 S.W.3d at 823. We review the evidence in a light favorable to

the jury’s finding. Sw. Key Program, Inc. v. Gil-Perez, 81 S.W.3d 269, 274 (Tex.

2002).




                                        11
      B.     DTPA

      To prevail on a DTPA claim, the Smiths must prove that: (1) they were

consumers; (2) the Church and Bryant engaged in at least one of the laundry list

items; (3) the Smiths detrimentally relied on the false, misleading, or deceptive act

or practice; and (4) the false, misleading, or deceptive act or practice was a

producing cause of the Smiths’ injury. See TEX. BUS. & COM. CODE § 17.50(a)

(West 2011); Amstadt v. U.S. Brass Corp., 919 S.W.2d 644, 649 (Tex.1996); B&W

Supply, Inc. v. Beckman, 305 S.W.3d 10, 21 (Tex. App.—Houston [1st Dist.] 2009,

pet. denied). If a DTPA claim is based in part upon a failure to disclose material

information, the statute also requires proof that the defendant knew the information

and failed to bring it to the plaintiff’s attention. See TEX. BUS. & COM. CODE ANN.

§ 17.46(b)(23) (West 2011) (stating that it is unlawful to fail to “disclose

information concerning . . . services which was known at the time of the

transaction”). A defendant has no duty to disclose material facts it should have

known but did not. Prudential Ins. Co. of Am. v. Jefferson Assocs., Ltd., 896

S.W.2d 156, 162 (Tex. 1995); Robinson v. Preston Chrysler-Plymouth, Inc., 633

S.W.2d 500, 502 (Tex. 1982).




                                         12
      C.     Causation

      The jury found that the Smiths would not have hired Morgan but for the

representations in the flyer, and that those representations were a substantial factor

in bringing about their damages. Bryant and the Church contend that the Texas

Supreme Court’s decision in Doe v. Boys Clubs of Greater Dallas, Inc., 907

S.W.2d 472 (Tex. 1995), compels the conclusion that such evidence is legally

insufficient to prove causation.

      In Boys Clubs, the plaintiffs sued the organization both in negligence and

under the DTPA, seeking damages arising from the sexual molestation of boys by

Mullens, who was a Boys Clubs volunteer. 2 Id. at 475. The Smiths contend that

Boys Clubs is inapposite, because it analyzes causation in the context of the

plaintiffs’ negligence claim, not their DTPA claim. The Smiths correctly point out

that, unlike the more lenient producing-cause element required under the DTPA,

the proximate cause element of a negligence claim requires greater foreseeability.

Nevertheless, both producing cause and proximate cause share the primary

requirement that the plaintiff prove the defendant’s conduct was the cause in fact

of the alleged injury. See Boys Clubs, 907 S.W.2d at 481 (“Raising a fact question

of producing cause, as with proximate cause, requires some evidence that the

defendant’s act or omission was the cause in fact of the plaintiff’s injury.”);

2
      The facts giving rise to the suit predated the 1995 amendments to the DTPA
      limiting recovery to economic damages.
                                         13
Prudential Ins. Co., 896 S.W.2d at 161 (“The element common to both proximate

cause and producing cause is actual causation in fact.”) (both citing Gen. Motors

Corp. v. Saenz, 873 S.W.2d 353, 357 (Tex. 1993)). It thus is appropriate to

examine Boys Clubs for guidance in reviewing this case.

      In Boys Clubs, the court recites that Mullens began to volunteer at the club

in the spring of 1986 to fulfill a sixty-hour community service requirement

imposed in connection with his second conviction for driving while intoxicated.

907 S.W.2d at 475. That summer, the Coes brought their grandsons to the Club,

after seeing an advertisement that promoted the Club as having “a wholesome

environment.” Id. at 479–80. They met Mullens while he was working as a

volunteer on the Club’s premises. Id. at 476. Mullens began to visit the Coe home

almost every weekend in the latter part of the summer of 1986 and then began to

visit even more, including weekday visits. Id. at 476, 481. Mullens continued to

volunteer at the Club after completing his community service hours.

      The Coes permitted Mullens to take the boys on outings within weeks of

meeting him. Id. at 481. At the end of the summer, Mullens offered to take the

boys on an overnight camping trip. Id. Before accepting the offer, Mrs. Coe

contacted the Club to make further inquiry about Mullens. The Club staff told her

that Mullens was a volunteer, that he worked for the sheriff’s department, and that




                                        14
he “seemed to be okay,” but that Mrs. Coe would need to “decide for herself”

whether to let him take the boys camping. Id. at 476, 480.

      During the camping trip, Mullens sexually abused one of the Coes’s

grandsons. Later that fall, he took the boys on a fishing trip, during which he

abused another. By the following summer, Mullens had become a regular guest in

the Coes’s home, sometimes spending the night. Mullens repeatedly abused the

boys during this period. Sometime in 1988, the Coes learned that Mullens had

been sexually assaulting their grandsons. They sued the Boys Clubs, bringing

claims under various negligence theories and the DTPA. Id. at 476.

      With respect to the Club’s representation that it “[c]hecked out” its

volunteers “thoroughly,” the Texas Supreme Court agreed that the statement this

was false, but concluded that the requisite causal connection was broken. Id. at

481. Similarly, in considering causation in this case, we assume, without deciding,

that the evidence supports the jury’s DTPA findings that Bryant and the Church

made actionable misrepresentations.          Cause in fact requires proof those

misrepresentations were a substantial factor in bringing about the injuries, and

without them, the harm would not have occurred. See IHS Cedars Treatment Ctr.

of DeSoto, Tex., Inc. v. Mason, 143 S.W.3d 794, 799 (Tex. 2003). The Supreme

Court has explained that




                                        15
      [t]he word “substantial” is used to denote the fact that the defendant’s
      conduct has such an effect in producing the harm as to lead reasonable
      men to regard it as a cause, using that word in the popular sense, in
      which there always lurks the idea of responsibility, rather than in the
      so-called “philosophic sense,” which includes every one of the great
      number of events without which any happening would not have
      occurred.

Lear Siegler, Inc. v. Perez, 819 S.W.2d 470, 472 & n.1 (Tex. 1991) (quoting

RESTATEMENT (SECOND) OF TORTS § 431 cmt. a (1965)), quoted in Transcont’l Ins.

Co. v. Crump, 330 S.W.3d 211, 224 (Tex. 2010). Evidence that the defendant’s

conduct did no more than furnish a condition which made the injuries possible

does not satisfy the cause-in-fact requirement. Boys Clubs, 907 S.W.2d at 478.

Even if the injury would not have happened but for the defendant’s conduct, the

connection between the defendant and the plaintiff’s injuries simply may be too

attenuated to constitute legal cause. Id. at 477–78.

      In Doe, the Texas Supreme Court agreed with the trial court that the Coes

had failed to raise a fact issue that the Boys Clubs’s representations were a

producing cause of the Coes’s injuries. Id. at 480–81. Although the Coes met

Mullens at the Boys Clubs’s premises, the Court explained, they developed a

relationship independent of the Boys Clubs, through which Mullens manipulated

the Coes into giving him unsupervised access to their grandchildren. Id. The

Court further noted that the criminal conduct did not take place at the club. Id.

Any of the misrepresentations, including that the club performed thorough


                                         16
background checks of its volunteers, the Court concluded, did no more than furnish

a condition that made the injuries possible. Id.

      We follow the reasoning in Doe to determine that a legal cause sufficient to

impose civil liability for the criminal conduct of another is similarly lacking in this

case. The flyer and Bryant’s comment led the Smiths to offer a job to Morgan to

babysit their children. The first time they hired Morgan, Mrs. Smith remained

present to observe Morgan’s interaction with her sons. The molestation began two

months later. By then, the Smiths had hired Morgan at least two other times after

their first observation visit. Without any prompting from, or remuneration to,

Bryant or the Church, the Smiths hired Morgan to babysit the boys five to ten

times during the period from January to May 2008.

      The Smiths suggest that we distinguish Boys Clubs based on the duration of

the families’ independent relationships with the perpetrators of the abuse—two

years in the Doe case and five months in this one. But Boys Clubs is not so

different from this case in timing as to undermine its fundamental holding that

representations of character or fitness cannot impose third-party liability for the

criminal conduct of another, when the criminal conduct happens independently. In

Doe, the Coes met Mullens at the club at the beginning of the summer; their

grandsons’ first camping trip with Mullens—and also the first incident of sexual

abuse—occurred at the end of that summer. In comparison, the Smiths received

                                          17
the flyer and first hired Morgan in early January 2008. The first incident of abuse

occurred in March, during the third or fourth time that Morgan babysat for the

Smiths. Although the length of time can be a factor in determining whether a

causal chain is broken, the duration in the two cases does not, standing alone,

distinguish Boys Clubs in a way that would lead to a different result. As the Texas

Supreme Court explained there: “[c]ommon sense tells us that the relationship

between Mr. and Mrs. Coe and Mullens developed independently of the Boys

Clubs’s relationship with the Coes,” even though Mullens met the Coes through his

work at the Club. Id. at 481.

      Likewise, the relationship between Morgan and the Smiths developed

independently of Bryant and the Church. After the initial flyer, all of the contact

between Morgan and the Smiths took place at the Smiths’ home. As with the Coes

and Mullens in the Doe case, the Smiths’ own interactions with Morgan informed

their decision to continue to hire Morgan. By the time of the abuse, the connection

between the representations in the flyer and Morgan’s presence in the Smith’s

home was too attenuated to cause the Smiths’ injuries—as in Doe, the

misrepresentations in the flyer created a condition that later made the grievous

injuries possible—it was not a producing cause of them. See id.




                                        18
                                   Conclusion

      We hold that the record does not contain legally sufficient evidence that the

Church and Bryant’s representations caused the Smiths’ damages. Thus, the trial

court erred in denying Beth Bryant and the Church’s motions for judgment

notwithstanding the verdict. We reverse the judgment of the trial court and render

judgment that the Smiths take nothing against Beth Bryant, Atascocita United

Methodist Church and the Weekday Learning Center.




                                             Jane Bland
                                             Justice

Panel consists of Justices Jennings, Bland, and Massengale.       Justice Jennings
dissents in a separate opinion.




                                        19
