Opinion

IN THE SUPREME COURT OF TEXAS

IN THE SUPREME COURT OF TEXAS

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No. 05-0916

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Pleasant Glade Assembly of

God, Reverend Lloyd A. McCutchen ,

Rod Linzay , Holly Linzay , Sandra

Smith,

Becky Bickel, and Paul

Patterson, Petitioners,

v.

Laura Schubert,

Respondent

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On Petition for Review from the

Court of Appeals for the Second District of

Texas

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Argued April 12,

2007

Chief Justice Jefferson ,

joined by Justice Green , and by Justice Johnson as to Parts II-A, III,

and IV, dissenting.

After today, a tortfeasor need merely allege a religious motive to

deprive a Texas court of jurisdiction to compensate his

fellow congregant for emotional damages. This sweeping immunity is inconsistent

with United States Supreme Court precedent and extends far beyond the

protections our Constitution affords religious conduct. The First Amendment

guards religious liberty; it does not sanction intentional abuse in religion’s

name. Because the Court’s holding precludes recovery of emotional damages—even

for assault and other serious torts—where the defendant alleges that the

underlying assault was religious in nature, I respectfully dissent.

I

Ironically, much of my analysis mirrors that found in Pleasant Glade’s

earlier plea to the court of appeals. See, e.g., infra note 9. In its

successful petition for a writ of mandamus, Pleasant Glade conceded that

Schubert’s claim for assault, battery, and false imprisonment presented a

“‘secular controversy’ and does not come within the protection of the First

Amendment. That is, no church or pastor can use the First Amendment as an excuse

to cause bodily injury to any person.” In the subsequent appeal, the court of

appeals held that Pleasant Glade, having received mandamus relief to exclude

religious references at trial, was precluded from raising a First Amendment

defense that it had quite purposefully abandoned. 174 S.W.3d

388, 407 . The Court holds that it is not. In light of the Court’s

ultimate dismissal for want of jurisdiction, however, I find the Court’s

protracted discussion of judicial estoppel puzzling. Subject-matter jurisdiction

cannot be conferred by estoppel, Van Indep . Sch . Dist. v. McCarty , 165 S.W.3d 351, 354 (Tex. 2005), or waiver, Tellez v. City of Socorro ,

226 S.W.3d 413, 414 (Tex. 2007), so the estoppel issue would seem,

technically, beyond the Court’s reach. [1] The Court has nevertheless expounded on

this question, and because the Court errs in its analysis, I offer a brief

rejoinder.

The Court states that Pleasant Glade is not judicially estopped from

making its First Amendment arguments because, among other reasons, “the asserted

inconsistency did not arise in a prior proceeding, but in this same case,” __

S.W.3d __, __, and “[c] ontradictory positions taken in

the same proceeding . . . do not invoke the doctrine of judicial estoppel,”

id. at __. That characterization misses the

mark. The United States Supreme Court recently discussed the policy

considerations underlying judicial estoppel and the rationale behind the

requirement that parties succeed in a prior proceeding:

[C] ourts regularly inquire whether the party has succeeded in

persuading a court to accept that party’s earlier position, so that judicial

acceptance of an inconsistent position in a later proceeding would create the

perception that either the first or the second court was misled . Absent

success in a prior proceeding, a party’s later inconsistent position introduces

no risk of inconsistent court determinations , and thus poses little

threat to judicial integrity.

New

Hampshire v. Maine , 532 U.S. 742, 750-51 (2001) (citations

omitted) (emphasis added). This Court’s formalistic conception of “prior

proceedings” will fail to capture many situations that implicate these concerns.

If a party obtains mandamus relief from this Court by taking one position and

then wins a judgment, also from this Court, as part of the same suit and based

on the opposite contention, this no less creates the “perception that either the

first or the second court was misled” and presents the “risk of inconsistent

court determinations” than if the mandamus proceeding had originated from a

different action. Id . The appropriate test to determine

if there has been a prior proceeding for the purposes of judicial estoppel is

whether the court has made a ruling—or “determination”—on the issue. Id. Thus,

parties would be able to reverse course before the court has ruled, but could be

bound by their previous position once successful (and if the other elements of

judicial estoppel are present). [2]

Although I agree, for the reasons discussed below, see infra n.

12, that Pleasant Glade is not estopped under these facts, the Court arrives at the estoppel question

improvidently and reaches a conclusion that will limit Texas courts’ ability to

preserve judicial integrity.

II

A

The rights

contained in the Free Exercise and Establishment Clauses are among our most

cherished constitutional freedoms. As broad as these protections are, I agree

with the Court that “‘under the cloak of religion, persons may [not], with

impunity,’ commit intentional torts upon their religious adherents.” __

S.W.3d at __ (quoting Cantwell v. Connecticut , 310

U.S. 296, 306 (1940)). Unfortunately,

this is precisely what the Court’s holding allows. Here, assuming all facts

favorable to the verdict, members of Pleasant Glade restrained Schubert on two

separate occasions against her will. During the first encounter, seven members

pinned her to the floor for two hours while she cried, screamed, kicked,

flailed, and demanded to be released. This violent act caused Schubert multiple

bruises, carpet burns, scrapes, and injuries to her wrists, shoulders, and back.

As she testified, “I was being grabbed by my wrists, on my ankles, on my

shoulders, everywhere. I was fighting with everything I had to get up, I was

telling them, no. I was telling them, let go, leave me alone. They did not

respond at all.” After Schubert “complied with what they wanted [her] to do,”

she was temporarily released. Fifteen minutes later, at the direction of

Pleasant Glade’s youth pastor, a different group of seven church members

physically restrained her for an hour longer. After this experience, Schubert

was “weak from exhaustion” and could hardly stand.

Three days later, a male church member approached Schubert after a

service and put his arm around her shoulders. At this point, Schubert was still

trying to figure out “what had happened” at the previous incident, “wasn’t

interested in being touched,” and resisted him. As Schubert testified, “I tried

to scoot away from him. He scooted closer. He was more persistent. Finally, his

grasp on me just got hard . . . before I knew it, I was being grabbed again.”

Eight members of Pleasant Glade then proceeded to hold the crying, screaming,

seventeen year-old Schubert spread-eagle on the floor as she thrashed,

attempting to break free. After this attack, Schubert was unable to stand

without assistance and has no recollection of events immediately afterward. On

both occasions, Schubert was scared and in pain, feeling that she could not

breathe and that “somebody was going to break [her] leg,” not knowing “what was

going to happen next.”

The jury found that petitioners assaulted and falsely imprisoned

Schubert, and the trial court rendered judgment for her on the false

imprisonment claim. Although this case presents an unusual set of facts,

involving physical restraint not proven to be part of any established church

practice, at its core the case is about secular, intentional tort claims

squarely within our jurisdiction, and I believe the Court errs in dismissing for

want thereof. I will address each of the Court’s arguments in turn. First, the

Court states that because Schubert’s “proof at trial related solely to her

subsequent emotional or psychological injuries,” her “case at trial then was not

significantly different from what she would have presented under her claim of

intentional infliction of emotional distress . . . [a] type of claim [that]

would necessarily require an inquiry into the truth or falsity of religious

beliefs that is forbidden by the Constitution.” __ S.W.3d at __ (citations

omitted). As an initial matter, this is factually inaccurate. Schubert testified

that she suffered physical as well as emotional injuries from the

assaults. Furthermore, the jury awarded damages for unsegregated past “physical pain and mental anguish.”

Pleasant Glade did not request that the damages be segregated, and so waived any

complaint that her physical injuries were not compensable. Tex. R. Civ. P. 274 .

More importantly, the Court’s allusion to intentional infliction of

emotional distress fails to explain how submitting Schubert’s emotional damages

claim would “require an inquiry into the truth or falsity of religious beliefs,”

“embroil this Court in an assessment of the propriety of . . . religious

beliefs,” or “ decid [e] issues of religious doctrine.”

__ S.W.3d at __, __, __ (citations omitted). In Tilton v. Marshall, 925

S.W.2d 672, 682 (Tex. 1996), we held that intentional infliction of emotional

distress claims based on insincere religious representations and breached

promises to read, touch, and pray over tithes and prayer requests were barred by

the First Amendment. We explained:

One of the

elements that a plaintiff must prove to establish intentional infliction of

emotional distress is that the conduct was "so outrageous in character, and so

extreme in degree, as to go beyond all possible bounds of decency, and to be

regarded as atrocious, and utterly intolerable in a civilized community." With

regard to religious representations, we conclude that no conscientious fact

finder would make such a determination without at least considering the

objective truth or falsity of the defendants' beliefs, regardless of what

evidentiary exclusions or limiting instructions were attempted. After all, the

outrageousness and extremity of a representation is, under almost any

circumstance, aggravated by being false or mitigated by being true.

925 S.W.2d at 681 . This case is not like Tilton . False

imprisonment does not require a showing of outrageous conduct. [3] Evaluating whether Pleasant Glade falsely

imprisoned Schubert does not require the factfinder to

determine “the objective truth or falsity of the defendants’ belief,” id.,

and neither does awarding her emotional damages. It is a basic tenet of tort

law that emotional damages may be recovered for intentional torts involving

physical invasions, such as assault, battery, and false imprisonment.

See , e.g., Dillard Dep’t Stores, Inc. v. Silva , 148 S.W.3d 370,

374 (Tex. 2004) (affirming award of mental anguish damages for false

imprisonment); Fisher v. Carrousel Motor Hotel, Inc. , 424 S.W.2d 627, 630

(Tex. 1967) ("Personal indignity is the essence of an action for battery.");

Davidson v. Lee , 139 S.W. 904, 907 (Tex. Civ .

App.—Galveston 1911, writ ref’d ) (“The rule that

damages cannot be recovered for mental suffering unaccompanied by physical

injury is not applicable when the wrong complained of is a willful one intended

by the wrongdoer to wound the feelings and produce mental anguish and suffering,

or from which such result should be reasonably anticipated, as a natural

consequence.”); Restatement (Second) of

Torts , § 905 cmt . c (1965) (“The principal

element of damages in actions for battery, assault or false imprisonment . . .

is frequently the disagreeable emotion experienced by the plaintiff.”); W. Page Keeton et al., Prosser and Keeton on

Torts § 11 (5th ed. 1984) (“Since the injury [resulting from false

imprisonment] is in large part a mental one, the plaintiff is entitled to

damages for mental suffering, humiliation, and the like.”); 20 William V. Dorsaneo III, Texas Litigation

Guide § 331.06 (2007) (“Mental suffering caused by a false imprisonment,

including humiliation, shame, fright, and anguish, is also compensable,

regardless of whether any physical harm was inflicted on the plaintiff.”);

cf. Boyles v. Kerr , 855 S.W.2d 593 , 597–98 (Tex. 1993) (“Our

decision [that there is no general duty not to negligently inflict emotional

distress] does not affect a claimant’s right to recover mental anguish damages

caused by defendant’s breach of some other legal duty . . . . We also are not

imposing a requirement that emotional distress manifest itself physically to be

compensable .”) ( emphasis added) ( citations omitted). This is common sense: many

experiences—including some sexual assaults and certain forms of torture—are

extremely traumatic yet result in no serious physical injury.

Given this, it is not surprising that the Court cites no case holding

that the First Amendment bars claims for emotional damages arising from assault,

battery, false imprisonment, or similar torts. I can cite a case, heavily relied

upon by the Court, for the opposite proposition: Tilton . There we held

that “[t]he Free Exercise Clause never has immunized clergy or churches from all

causes of action alleging tortious conduct,” and cited

Meroni v. Holy Spirit Association for the

Unification of World Christianity, 119 A.D.2d 200 (N.Y. App. Div. 1986),

with the parenthetical “‘[A] church may be held liable for intentional tortious conduct on behalf of its officers or members, even

if that conduct is carried out as part of the Church’s religious practices.’”

Tilton , 925 S.W.2d at 677 . The Court cites

Cantwell v. Connecticut , 310 U.S.at 310, for

the proposition that “intangible harms” are “insufficient to impose civil or

criminal liability.” __ S.W.3d at __. The Cantwell Court , however, found in

that case “no assault or threatening of bodily harm, no truculent bearing, no

intentional discourtesy, no personal abuse,” and made clear that “violence and

breaches of the peace,” such as occurred in this case, may be punished.

Cantwell, 310 U.S. at 310 . The Court also discusses

Paul v. Watchtower Bible & Tract Society of New York, Inc. , 819 F.2d

875 (9th Cir. 1987), but that case rested on the fact that “[n]o physical

assault or battery occurred.” Paul , 819 F.2d at

883 . Similarly, in Westbrook v. Penley , we cited the “[n]o

physical assault” language from Paul and stated that the act at issue was

not “an intentional tort that endangered Penley’s or

the public’s health or safety.” 231 S.W.3d 389, 404

(Tex.

2007). [4]

I agree with the Court that certain claims for emotional damages are

barred by the First Amendment—if Schubert were merely complaining of being

expelled from the church, she would have no claim in the civil courts. But

again, this case, as it was tried, is not about beliefs or “intangible harms”—it

is about violent action—specifically, twice pinning a screaming, crying teenage

girl to the floor for extended periods of time. That was how it was presented to

the jury, which heard almost nothing about religion during the trial due

to the trial court’s diligent attempt to circumvent First Amendment problems and

to honor the court of appeals’ mandamus ruling that neither side introduce

religion as a reason for Laura’s restraint. [5] Indeed, the trial court told the jury at

the beginning of the case that “the Court of Appeals, the appellate courts, have

instructed us that we don’t get into spiritual matters because it would violate

the [E] stablishment [C] lause

of the First Amendment of the Constitution,” and later repeated this

instruction. That the Court looks to a dictionary for evidence of Pleasant

Glade’s beliefs and practices is proof of the trial court’s success in keeping

religion out of the courtroom. See __ S.W.3d at __, n. 2. Thus, the

Court’s assertion that assessing emotional damages against Pleasant Glade for

engaging in these religious practices “would . . . embroil this Court in an

assessment of the propriety of those religious beliefs” is belied by the conduct

of this very case: Schubert testified that she was “grabbed” after collapsing

due to illness; Pleasant Glade contested that version of events without

reference to demons, “laying of hands,” or other religious subjects, __ S.W.3d

at __; and the jury was able to award damages without considering—or even being

informed of—Pleasant Glade’s beliefs. [6]

Further, although the Court chooses to conduct its own inquiry into the

role of “laying hands” in Pleasant Glade’s religion, [7] and attempts to limit its holding by

stating that “religious practices that threaten the public’s health, safety, or

general welfare cannot be tolerated,” and thus that there may be some cases in

which emotional damages are available as a consequence of religiously motivated

conduct, __ S.W.3d at __, any religious motivation Pleasant Glade may have had

is irrelevant to our consideration. The tort of false imprisonment is a

religiously neutral law of general applicability, and the First Amendment

provides no protection against it. Employment Div. v. Smith , 494

U.S. 872, 879 (1990) (“[T]he right of

free exercise does not relieve an individual of the obligation to comply with a

valid and neutral law of general applicability on the ground that the law

proscribes (or prescribes) conduct that his religion prescribes (or

proscribes).") ( citations omitted); Moses v. Diocese

of Colo. , 863 P.2d 310, 320 (Colo. 1993) (“Application of a secular

standard to secular conduct that is tortious is not

prohibited by the Constitution.”). The Smith Court emphatically rejected

the proposition that the First Amendment alone—without being coupled to another

constitutional protection, such as the freedom of speech, the press, or to

direct the education of one’s children, 494 U.S. at

881—“could excuse [an individual] from compliance,” id. at 879 , with a general applicable law:

Laws . . .

are made for the government of actions, and while they cannot interfere with

mere religious belief and opinions, they may with practices. . . . Can a man

excuse his practices to the contrary because of his religious belief? To permit

this would be to make the professed doctrines of religious belief superior to

the law of the land, and in effect to permit every citizen to become a law unto

himself .

Id. at 879 (quoting Reynolds v.

United States ,

98 U.S. 145, 166–67 (1878)). [8]

To be clear, even if it had been proven at trial that Pleasant Glade’s

religion demanded that Schubert be restrained, the First Amendment would provide

no defense—we simply need not evaluate the validity of Pleasant Glade’s

religious beliefs, or even inquire into the assailants’ motives, to hold

Pleasant Glade liable for its intentionally tortious

conduct. [9] And while the Court suggests that

imposing this liability would have a “chilling effect” on the church’s beliefs,

__ S.W.3d at __, constitutional protection for illegal or tortious conduct cannot be bootstrapped from the protection

of beliefs where it does not otherwise exist. Further, the

Court’s threat to “health, safety, or general welfare” test for liability for

religiously motivated acts is almost identical to the “substantial threat to

public safety, peace or order” language from Sherbert v. Verner ,

374 U.S. 398, 403 (1963). In

Smith , however, the Court expressly rejected the application of Sherbert , which developed out of an unemployment

compensation case, to “generally applicable prohibitions of socially harmful

conduct.” Smith , 494 U.S. at 885 . [10]

And even under the Court’s erroneous standard, it is hard to see why this

case would not qualify. The torts of false imprisonment and assault both have

substantially similar criminal analogs, see Tex. Penal Code §§ 20.02 (“Unlawful

Restraint”), 22.01 (“Assault”), and it cannot be seriously argued from this

record that Pleasant Glade’s conduct did not threaten Schubert’s welfare. It is

difficult to determine what would meet the Court’s standard, not least

because the Court offers no analysis beyond its declaration that “this is not

such a case.” Finally, the Court hints that it might have found liability here

if Schubert had been a passerby, but that “religious practices that might offend

the rights or sensibilities of a non-believer outside the church are entitled to

greater latitude when applied to an adherent within the church.” __ S.W.3d at __. There is a kernel of truth in this

statement, but the Court’s formulation is imprecise and overbroad. Members of

religious groups routinely and impliedly consent to a variety of faith-based

practices. Accordingly, implied consent could, in many circumstances, extend to

physical encounters like baptisms and to other practices congregants embrace as

part of their faith. And perhaps this type of implied consent could, in some

circumstances, extend to being pinned to the floor for hours at a time despite

the member’s explicit, contemporaneous withdrawal of consent. That question is

not before us today, however. Consent is a question of fact— indeed, lack of consent is an element of false imprisonment

on which we have an affirmative jury finding in this case. Pleasant Glade did

not challenge that finding at the court of appeals, and does not raise it here.

Nevertheless, the Court treats church membership as an across the board buffer

to tort liability. [11] The problems with this approach are

obvious. It is impossible to apply the Court’s standard in the absence of

factual development or determination in the trial court. We are in no position

to decide that the ordeal to which Schubert was subjected was so “expected” and

“accepted by those in the church” as to overcome Schubert’s vehement denial of

consent at the time of the incidents. __ S.W.3d at __.

Further, the scant evidence does not support the Court’s conclusion. Senior

Pastor McCutchen , in his affidavit quoted by the

Court, speaks of “lay[ ing ] hands” and of church

members “faint[ ing ] into semi-consciousness, and

sometimes l[ ying ] down on the

floor of our church.” Id.

at __. This is far removed from the incident described by Schubert,

which we must take as true even if Pleasant Glade had properly raised this

issue, City of Keller v. Wilson , 168 S.W.3d 802, 827 (Tex. 2005)

(“[L] egal -sufficiency review in the proper light must

credit favorable evidence if reasonable jurors could, and disregard contrary

evidence unless reasonable jurors could not.”), and lends no credence to the

Court’s consent theory.

B

To the extent

that this case presents any First Amendment problems, I believe they lie in the

fact that Schubert was traumatized not only by the false imprisonment viewed in

isolation, but also by the religious content of that experience. Thus, because

one of Schubert’s experts, Dr. Helge , testified as to

the whole of Schubert’s mental anguish, the jury may have awarded damages

stemming in part from the religious nature of the events in question. __ S.W.3d at __. This is prohibited by the First Amendment.

Paul , 819 F.2d at 883 . As discussed above,

however, the general rule in Texas is that plaintiffs may recover mental

anguish damages resulting directly from certain types of intentional torts,

including false imprisonment. Thus, the difficulty in this type of hybrid case

lies in separating the wheat from the chaff.

The Court solves this dilemma not by extracting the religious from the

secular, but by binding them together and then dismissing the case for lack of

jurisdiction. I would, instead, treat Pleasant Glade’s First Amendment argument

as an affirmative defense that must be raised at trial. See Tex. R. Civ. P. 94; cf. Tilton ,

925 S.W.2d at 677 (“[W]hen a plaintiff's suit implicates a defendant’s free

exercise rights, the defendant may assert the First Amendment as an affirmative

defense to the claims against him.”). A jury could then be instructed to award

damages only for the mental anguish the plaintiff would have suffered had the

tort been committed by a secular actor in a secular setting. Juries are

frequently asked to exclude certain sources of injury—in this case religious

sources—when calculating damages, and this procedure would allow plaintiffs’

secular claims to go forward while protecting defendants’ First Amendment

rights. See Comm. on Pattern Jury

Charges, State Bar of Tex., Texas

Pattern Jury Charges—General Negligence & Intentional Personal Torts

PJC 8.7 (2006) Personal Injury Damages—Exclusionary Instruction for Other

Condition (“Do not include any amount for any condition not resulting

from the occurrence in question”) (emphasis original), & cmt . (“If it would add clarity in the individual case, an

instruction not to consider specific, named . . . conditions would be proper, if

requested.”); see also id. at PJC 8.8 Personal

Injury Damages—Exclusionary Instruction for Preexisting Condition That Is

Aggravated, 8.9 Personal Injury Damages—Exclusionary Instruction for Failure to

Mitigate. Further, if the case is tried without reference to religion, making an

exclusionary instruction potentially confusing or prejudicial, the trial court could in these situations include a proximate

cause question, which includes an element of foreseeability . See id. at

PJC 2.4 Proximate Cause (“[T]he 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 .”) ( emphasis omitted). Thus, the jury (not being aware of any

religious aspect of the case) would find only damages reasonably connected to

the secular assault.

Pleasant Glade, however, did not request any such instruction, and this

omission bars relief. [12] See Tex. R. Civ. P. 278 (“Failure to submit

a definition or instruction shall not be deemed a ground for reversal of the

judgment unless a substantially correct definition or instruction has been

requested in writing and tendered by the party complaining of the judgment.”).

Further, while the Court points to Dr. Helge’s

testimony as proof that Schubert’s religious and secular damages are

inextricably intertwined, another expert, Dr. Millie Astin , specifically stated that she could separate

the two. And Schubert testified that while she was being restrained she was

afraid she "was being injured" and that she "might die"—trauma clearly

associated with the act of restraint itself. Although segregating the religious

from the secular may sometimes be difficult, it can and should be done. See

Jones v. Wolf , 443 U.S. 595, 604 (1979).

III

Because I

would not dismiss for lack of jurisdiction, I would address Pleasant Glade’s

argument that the trial court erred in allowing expert testimony on, and

recovery for, Schubert’s diagnosis of posttraumatic stress disorder. However,

because the other evidence of Schubert’s mental anguish, including “angry

outbursts, weight loss, sleeplessness, nightmares, hallucinations,

self-mutilation, fear of abandonment, and agoraphobia,” 174 S.W.3d at 393 , is

sufficient to support the jury’s award, I cannot say that the error, if any,

“probably caused the rendition of an improper judgment.” Tex. R. App. P. 61.1(a); Nissan Motor Co. v. Armstrong , 145

S.W.3d 131, 144 (Tex. 2004). It is

therefore not necessary to consider Pleasant Glade’s claims in any detail.

IV

Pleasant

Glade also contends that the trial court erred in refusing to submit their in

loco parentis defense to the jury, and that the

First Amendment required a finding of actual malice to support the jury’s award

of mental anguish damages. In a cross petition for review, Schubert argues that

the court of appeals erred in concluding there was no evidence to support a

finding that Laura’s loss of earning capacity was foreseeable and proximately

caused by Pleasant Glade’s conduct. I agree with the court of appeals’

conclusions on these issues.

V

The Court

today essentially bars all recovery for mental anguish damages stemming from

allegedly religiously motivated, intentional invasions of bodily integrity

committed against members of a religious group. This overly broad holding not

only conflicts with well-settled legal and constitutional principles, it will

also prove to be dangerous in practice. Texas courts have been and will continue to be

confronted with cases in which a congregant suffers physical or psychological

injury as a result of violent or unlawful, but religiously sanctioned, acts. In

these cases, the Court’s holding today will force the lower courts to deny the

plaintiff recovery of emotional damages if the defendant alleges that some

portion thereof stemmed from the religious content of the experience—unless the

trial court is able to anticipate that the case will fall under the Court’s

rather vague exception. See __ S.W.3d at __ (“[W]e can imagine

circumstances under which an adherent might have a claim for compensable

emotional damages as a consequence of religiously motivated conduct.”).

I would affirm the court of appeals’ judgment. Because the Court instead

dismisses the case for lack of jurisdiction, I respectfully dissent.

____________________________

Wallace B. Jefferson

Chief Justice

OPINION

DELIVERED: June 27, 2008

[1]

The fact that “[judicial estoppel] is not strictly speaking estoppel but rather

is a rule of procedure”, __ S.W.3d __, does not affect this analysis. See

Wilmer-Hutchins Indep . Sch .

Dist. v. Sullivan , 51 S.W.3d 293 , 294–95 (Tex. 2001) (“A party cannot by his own conduct

confer jurisdiction on a court when none exists otherwise.”).

[2]

Courts have the option of reversing their previous determination rather than

invoking judicial estoppel, thus holding the party to the second of its

inconsistent arguments rather than the first. See New

Hampshire , 532 U.S. at 750 (“Because the rule is

intended to prevent improper use of judicial machinery, judicial estoppel is an

equitable doctrine invoked by a court at its discretion.”) ( citations omitted).

[3]

The elements of intentional infliction of emotional distress are: “(1) the

defendant acted intentionally or recklessly; (2) the conduct was extreme and

outrageous; (3) the defendant’s actions caused the plaintiff emotional distress;

and (4) the emotional distress that the plaintiff suffered was severe.” City of Midland v. O’Bryant , 18 S.W.3d 209, 216 (Tex. 2000). The

elements of false imprisonment, on the other hand, are “(1) willful detention;

(2) without consent; and (3) without authority of law." Wal-Mart Stores, Inc. v. Rodriguez ,

92 S.W.3d 502, 506 (Tex. 2002).

[4]

In contrast, the tort of intentional infliction of emotional distress was

developed because it was thought that extreme and outrageous conduct should be

actionable despite the lack of a physical invasion or another otherwise

tortious act, and is sometimes criticized because

it compensates plaintiffs for mental anguish not naturally flowing from such

an act, which may be mere speech. See Restatement (Second) of Torts , § 46

cmt . b (1965) (“[E]motional

distress may be an element of damages in many cases where other interests have

been invaded, and tort liability has arisen apart from the emotional distress.

Because of the fear of fictitious or trivial claims, distrust of the proof

offered, and the difficulty of setting up any satisfactory boundaries to

liability, the law has been slow to afford independent protection to the

interest in freedom from emotional distress standing alone. It is only within

recent years that the rule stated in this Section has been fully recognized as a

separate and distinct basis of tort liability, without the presence of the

elements necessary to any other tort, such as assault, battery, false

imprisonment , trespass to land, or the like.”) ( emphasis added).

[5]

In order to reach the conclusion that “the religious practice of ‘laying hands’

and church beliefs about demons are [] closely intertwined with Laura’s tort

claim,” the Court quotes testimony on Pleasant Glade’s religious beliefs and

practices that the jury did not hear, and references claims made in Schubert’s

original, unamended petition, __ S.W.3d at __, which

was filed before Pleasant Glade’s successful mandamus petition, In re

Pleasant Glade Assembly of God , 991 S.W.2d 85, 87-88 (Tex. App.—Fort Worth

1998, orig. proceeding). Schubert subsequently amended her petition, and the

live pleading in this case makes reference to neither “exorcism” nor “the

Devil.”

[6]

As discussed below, I think it possible that some of Schubert’s emotional

damages stemmed from protected religious speech and should not have been

awarded. Pleasant Glade failed to preserve error on this point, however, and the

Court errs in holding all of Schubert’s damages—some of which certainly

resulted from the restraint itself—barred. See infra Part II.B.

[7]

In reaching the conclusion that “the act of ‘laying hands’ is infused in

Pleasant Glade’s religious belief system,” __ S.W. 3d at __, the Court engages

in the unconstitutional conduct it purports to avoid: “deciding issues of

religious doctrine.” Id. at __;

see Employment Div. v. Smith , 494 U.S. 872, 887

(1990) (“Repeatedly and in many different contexts, we have warned that courts

must not presume to determine the place of a particular belief in a religion or

the plausibility of a religious claim.”).

[8]

The Religious Freedom Restoration Act of 1993 ("RFRA"), 42 U.S.C. §§

2000bb-2000bb-4, purported to overrule Smith by requiring a compelling

state interest to substantially burden a person’s religious practice. See Gonzales v. O Centro Espirita Beneficente Uniao do Vegetal , 546 U.S. 418, 424

(2006). Although the Court cites Tilton for support, Tilton

did not consider the application of Smith because Tilton was

decided before RFRA was held to be beyond Congress’s legislative authority to

enact with respect to the states in City of Boerne v. Flores , 521 U.S.

507 (1997). See Tilton , 925 S.W.2d at 676 n.5 (noting

that various courts had held RFRA constitutional) . Thus, insofar as

statements in Tilton conflict with Smith , they should no longer be

considered authoritative.

[9]

Even Pleasant Glade realizes this fundamental principle of First Amendment law.

Its petition for writ of mandamus stated:

[Schubert] alleges that she was physically grasped,

taken and held on the floor of the church against her will. This was allegedly

done as part of an “exorcism” in an alleged attempt to exorcise a demon from

her. However, this religious context is actually irrelevant. Since Laura

Schubert alleges she was held on the floor against her will, she brings claims

for assault, battery, and false imprisonment. This is a “bodily injury” claim .

. . Relators , the church and the pastors, concede that

this is a “secular controversy” and does not come within the protection of the

First Amendment. That is, no church or pastor can use the First Amendment as an

excuse to cause bodily injury to any person . . . .

* * *

If this were the sum total of this dispute, Relators would not be here before this Court . . . No

religious beliefs would be implicated. The First Amendment and the free exercise

of religion would simply not be an issue.

__ S.W.3d at __. Although the Court somehow concludes from this

statement that “Pleasant Glade viewed the Schuberts '

claims of emotional damages as religious in nature,” it is plain from the text

that the Church made no such distinction. And Pleasant Glade was correct not to

do so: no religious beliefs are implicated by awarding Schubert mental anguish

damages suffered as a result of her false imprisonment. But cf. infra

note 12.

[10] The Court cites Sands v. Living Word

Fellowship , 34 P.3d 955, 958 (Alaska 2001), for the proposition that

“religious conduct must not pose ‘some substantial threat to public safety,

peace or order.’” __ S.W.3d at __. This language is taken from Sherbert by way of Frank v. State , 604 P.2d

1068, 1070 (Alaska 1979), and the Sands court did

not analyze the effect of Smith on its precedent.

[11] While the Court cites Smith v. Calvary

Christian Church , 614 N.W.2d 590, 593 (Mich. 2000), that case is clearly inapposite.

There, the plaintiff “explicitly consented in writing to obey the church’s law,”

id. , and, in any case, the court specifically reserved the question of

whether its reasoning would extend to church discipline “in violation of the

Michigan Penal Code,” id. at 595 .

[12] Even under my view of judicial estoppel,

Pleasant Glade would not be estopped from arguing that the jury improperly

awarded mental anguish damages stemming from the religious implications of the

incident, which I interpret to be consistent with the position it took in its

mandamus petition.