Pollard et al v. Church of God in Christ Inc et al

Filing 57

MEMORANDUM OPINION AND ORDER GRANTING DEFENDANT'S MOTION FOR SUMMARY JUDGMENT re: 44 Final MOTION for Summary Judgment on Kimberly Pollard's Claims (Ordered by Senior Judge Mary Lou Robinson on 11/9/2017) (vls)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF TEXAS

AMARILLO DIVISION
KIMBERLY D. POLLARD and J.S. (A
Minor Child),
PLAINTIFFS,

$
$
$

VS,

$

an

CHURCH OF GOD IN CHRIST,INC.,
Active Domestic Tennessee
Corporation, and CHURCH OF GOD
CHRIST, BOARD OF BISHOPS, and BISHOP
JAMES L'KEITH JONES,

Nonprofit
IN

DEFENDANTS.

$

CIVIL ACTION CAUSE NUMBER

$
$

2:16-CY-238-J

$

$
$
$
$

MEMORANDUM OPINION AND ORDER GRANTING
DEFENDANT'S MOTION FOR SUMMARY JUDGMENT
Before the Court is Defendant Church of God in Christ, Inc.'s motion, filed August 18,2017

,

for summary judgment, Plaintiff Kimberly Pollard's response thereto, and the Defendant's reply.
Because the statute of limitation ran upon Plaintiffls claims long before this lawsuit was filed,
summary judgment for the Defendant is granted.

Factual Background
This is an action brought by the alleged victim of a sexual assault against the national church
by which the assailant, Bishop James L'Keith Jones, was ordained. A final defaultjudgment against

Defendant Jones was entered in the amount of $750,000.00 in damages, plus reasonable and
necessary costs in this action. That judgment is now hnal.

Plaintiff Kimberly Pollard alleges direct liability against the national church
its alleged negligent supervision of Bishop Jones

-

based upon

- as well as vicarious liability for Jones' sexual

o'knew
or should have known of the
assaults. Specifically, she asserts that the national church

illicit

conduct that [] Jones was engaging in with Plaintiff Pollard because

a

basic investigation would have

revealed these facts" and, because Jones allegedly worked for and was ordained by the national
church, it is liable for his misconduct.
As alleged in Plaintiff Pollard's complaint and explained in her summaryjudgment affidavit,

Plaintiff states that

she had her

first sexual encounter with then-pastor Jones in 1995 in New Mexico,

whenshewas 16yearsof age. Theageof consentis 16inNewMexico. Inabout2002,when
Plaintiffwas 23 years old,

she states that she stopped seeing Jones and

"[their] communication came

to a halt, with phone calls, emails and texts on each other's birthdays" or just "small talk"
conversations "here and there." In November of 2014

- twelve

years later

- Jones and Plaintiff

Pollard, then age 35, began a second, consensual, sexual affair in Texas. Plaintiff ended that affair

in 2016 when she states she realized that Jones would not divorce his wife and marry her, and was
allegedly "grooming" her daughter for a future sexual affair

- as she then realized he had groomed

her when she was a minor. Jones married his current wife before 2002, during the course of

Plaintiff s first affair with him.
Pollard first reported the sexual misconduct by Jones to the national office of the church
during the summer of 2016. Pollard characterizes Jones's underlying conduct as sexual assault,
sexual abuse, and sexual molestation of a minor, where multiple assaults continued well into

Plaintiff s adulthood.
Summary Judgment Standards
"The Court may terminate litigation by rendering a summary judgement where no genuine
issue of material fact exists and the moving party is entitled to judgement as a matter of law,"

Honore v. Douglas,833 F.2d 565,567 (5th Cir. 1987)(citations omitted). See also Celotex Corp.

v. catrett, 477 U.S. 317 ,322-23, 106 S.Cr. 2548, 2552,91 L.Ed.2d 265 (1986)(initial burden is on

movant to show entitlement to summary judgment with competent evidence); Fed. R. Civ. Pro.
56(c)./1 "Summary judgement disposition is inappropriate
as a whole, could lead to

at

if the evidence before the court, viewed

different factual findings and conclusions." Honore v. Douglas,833 F.2d

567. This Court must resolve "all factual uncertainties and mak[e] all reasonable inferences in

favor of the nonmoving party." See id. Accord Bienkowski v. American Airlines,851 F.2d 1503,
1504 (5th

Cir, 1988)./2 Such a finding may be supported by the

absence

of evidence necessary to

establish an essential element ofthe non-moving party's case. See Celotex Corp. v. Catrett, 477 U.S.

317,322,106 S.Ct. 82,121L.8d.2d265 (1986); Topalian y. Ehrman, 954F.2d 1125,1131 (5th
Cir.), cert. denied, 954 U. S. I 125, I 1 3 S.Ct. 82,

l2l L.Ed.2d 46 (1992).

Discussion and Analysis
Assuming Plaintiff Pollard properly alleges

a

non-consensual sexual assault cause of action,

the Texas statute of limitations for personal injury in such sexual assault cases is five years beginning

from when the cause of action accrued. See Tex. Civ. Prac. & Rem. Code Section 16.0045(a).
However, the statute of limitations is tolled until a minor plaintiff turns eighteen.

Plaintiff s limitations period

Id.

Therefore

began to run on January 29,1997 , when she turned eighteen. Pollard's

1

A material fact issue is one that might affect the outcome of the suit under the governing
law. Andersonv.LibertyLobby, [nc.,477U.5.242,249,106 S.Ct.2505,2510,91L.Ed.zd202(1986).
The substantive law governing the case will identifu which facts are material. Id., 477 U.S. at 249,106
S.Ct. at 2510, See Bache v. American Tel, and TeL Co., 840 F.2d 283,287 (5th Cir.), cert. denied,488
u.s. 888, 109 S.Ct. 219,102L.F,d.2d 210 (1988).

2

However, "[t]here is no issue for trial unless there is sufficient evidence favoring the
nonmoving party for a jury to return a verdict for that party." Liberty Lobby, 477 U.S. at249,106 S.Ct.
at2511(citations omitted). "If the evidence is merely colorable, or is not significantly probative,
summary judgment may be granted." Id, (citations omitted).

sexual assault-based claims accrued when each sexual assault occurred. By Plaintiff s admission,
they completely ended in2002 when she terminated the first affair with Jones, when she was age 23.

Pollard complains ofconduct occurring intwo multi'yeartime periods, whichwere separated
by twelve years: from 1995 into 2002, and beginning again in2014 until finally ending in2016.
Pursuant to Texas' five-year limitations period for sexual assault-based claims, all of her sexual
assault-based claims related

to Jones'misconduct occurring between 1995 and 2002 therefore

expired at the latest sometime durin g 2007
years too

.

She filed this lawsuit

in 2017 - approximately nine

late. The summary judgment evidence in this record reflects that the parties' conduct

during the second time period, from 2014 and ending in20l6, was consensual and occurred when
the Plaintiff was in her mid-thirties, and still willing and hoping to marry then-Bishop Jones.

Pollard claims that she did not discover the causal connection between Jones' sexual abuse
and her depression and other emotional injuries she suffered

until 2016, when she first realized

she

had been "groomed" as a minor by Jones for their affair and that the affair had caused her ongoing

mental depression. However, in Texas a sexual assault is an impermissible and intentional invasion
of the victim's person, and is an injury then actionable independently from resulting mental suffering

orotherphysicalinjury. SeeDoev.St.Stephen'sEpiscopalSch.,382Fed.Appx.386,389(5thCir.
2010) (quoting Harnedv. E-Z Fin. Co.,151 Tex. 641,254 S.W.2d 81, 85 (Tex. 1953)).
It is undisputed that Pollard has not pled that Jones's conduct was a tort continuing into 2014
and

through20l6, given the

12 year complete absence of a sexual relationship between 2002 and

into 2014. She has not argued that any other state's law applies under the facts of this case.
As to the church's vicarious liability, that theory of liability centers around the relationship
between a tortfeasor's alleged misbehavior and the work he was hired to do. Under the doctrine

of

respondeat superior, an employer is liable for an employee's torts if: (1) his acts were within the

employee's general authority; (2)the acts were in furtherance of the employer's business; and (3)
the acts were aimed to accomplish the employment objectives for which the employee was hired.

SeeMinyardFoodStoresv.Goodman,80S.W.3d573,577 (Tex.2002). Iftheemployeewasacting
within the course and scope of his employment atthe time he committed the wrongful acts, liability
forthe act is imputedto the employer.

See

Baptist Mem'l Hospitalv. Sampson,969 S.W.2d945,947

(Tex. 1998). However, employers generally are not liable for an employee's "purely personal"
pursuits or "errands of his own," "doing nothing to further the master's business or to accomplish

theobjectforwhichhewasemployed." SeeMitchellv.Ellis,374S.W.2d333,336(Tex.Civ.App.

- Fort Worth

1963,

writ re.f'A. Cf. Hein v. Harris Co., 557 S.W.2d 366,368 (Tex. Civ. App. -

Houston [1st Dist.] 79J7 , writ ref'd n.r.e.)(("The rule is that when a servant turns aside, no matter
how short the time, from the prosecution of the master's work to engage in an affair wholly his own,
he ceases to act for the master, and the responsibility for his actions in pursuing his own business or
pleasure is upon him alone.")(citingTexas & P. Ry. Co. v. Hagenloh, 151 Tex. 191,247 S.W.2d 236
(1

es2)).
Therefore, assuming Jones was

a

national church employee, and without needing to consider

Defendant's legal contentions that Jones actually was not its employee, the clear Texas rule is that
even if Jones was a national church employee, the church as his employer is not liable for employee

Jones' wrongful acts if and when he as an employee strayed from his employer's work for a purely
personal pleasure or pursuit. See Southwest Dairy Products Co. v. De Frates, 132Tex.556,559,
125 S.W.2d 282,283 (1939).

Pollard's assault claims therefore can not trigger vicarious liability upon the church unless
the church somehow ratified his wrongful actions. "In Texas it is not within the scope of a servant's

authority to commit an assault on a third person." Geiger v. Varo, Inc., 1994 WL 246159, * 5 (Tex.

App.-Dallas,June6, 1994,writdenied)(citingGreenv.Jackson,674S.W.2d395,398 (Tex.App.

-Amarillo 1984,writref'dn.r.e,)). Here,Pollardcomplainsof"sexualabuse,""sexualmolestation"
and other intentional misbehavior by Jones. The national church is not vicariously liable for these

intentional torts which, on the basis of the facts pled, were personal pursuits of her by Jones and no
contention is pled, argued or briefed that the national church somehow ratified his actions. Plaintiff

cites to no evidence showing Jones' wrongful acts were done for other than his own personal
pursuits, or were done on behalf of or pursuant to the national church's directions or business needs,
or were within the scope of any express authority delegated to him by the national church, or were

somehow ratified at any time by the church.

Finally, the range of possible Texas limitations periods for her causes of action are either one
year for breach of a promise of marriage, see Texas Civil Practices & Rem. Code $ 16.002(a),two

years for a personal injury claim caused by negligence, id. at

$ 16.003(a), four years if

some

applicable form of fraud, which Plaintiff has not pled, id. at $ 16.004(a)(a), or five years for sexual

assaultofachildundertheageof lTbutolderthantheageof 14. Id. at$16.0045(bxl). Plaintiff

s

vicarious liability/negligent supervision claim is therefore also barred by limitations.
In response to the Defendant's limitations defense, Plaintiff states onlythat "Plaintiffs do not

believe that current applicable law

- the statute of limitations -

contemplates suit based on Jones'

sexual abuse of Pollard when she was a minor." That belief is not well-founded. Texas' limitations
statutes specifically addresses sexual abuse of a minor cases. The specific limitations for personal

injury in sexual assault cases of a minor over the age of 14 is five years from when the cause of
action accrues, Further, Texas law expressly provides that the statute of limitations is tolled until
the Plaintiff here turned eighteen.

Plaintiff s sole argument

does not meaningfully respond to those

statutory provisions, fails to cite or discuss any substantive law, fails to argue that any other law

applies, and fails to make a meaningful argument. Plaintiff

s

response fails to show a genuine issue

of material fact evidencing that limitations is not a valid defense, as pled and argued by the
Defendant under the undisputed facts of this case.

Conclusions

The party seeking summary judgment has shown an entitlement to summary judgment
pursuant to Rule

56. Defendant Church of God in Christ, Inc. Is entitled to judgment

because

limitations has clearly run on all of Plaintiff Kimberly Pollard's claims and, in addition, vicarious

liability does not attach to the national church for Jones' personal pursuits of the Plaintiff outside the
scope of his employment, even

if

he was an employee or agent of the national church (which the

Defendant disputes and the Court does not, and need not, decide).

For all of those reasons, the Defendant's motion for summary judgment against all of
Plaintiff Kimberly Pollard's claims and causes of action is therefore granted.
It is SO ORDERED.

Signed this

the

qrh

day of November, 2017.

s/ l{ary Lou Robinson
MARY LOU ROBINSON
SENIOR LINITED STATES DISTRICT JUDGE