Original Opinion of November 3, 1993,
Before Terry, Schwelb, and Wagner, Associate Judges. Opinion for the court by Associate Judge Schwelb. Opinion of Associate Judge Wagner, Concurring in part and Dissenting in part.
The opinion of the court was delivered by: Schwelb
SUPPLEMENTAL OPINION ON PETITION FOR REHEARING
SCHWELB, Associate Judge : This case involves allegations by parishioners or former parishioners of a church that the bishop and his associates induced them to make contributions to a church building fund by fraud and undue influence. The evidence and the contentions of the parties are described in this court's opinion dated November 3, 1992. See Roberts-Douglas v. Meares, 615 A.2d 1114, (D.C. Nov. 3, 1992) (Roberts-Douglas I). In that decision, we affirmed as to all plaintiffs except Daniel and Mae Harrison the trial Judge's entry of partial summary judgment on the claim of undue influence; as to the Harrisons, we remanded that claim for trial. With respect to the claim of fraud, we held, with Judge Wagner Dissenting, that the plaintiffs' discovery had been unduly curtailed, and we remanded for further proceedings. We affirmed the entry of summary judgment in favor of the defendants on the plaintiffs' claim of intentional infliction of emotional distress. Finally, we affirmed the trial court's denial of the defendants' request for Rule 11 sanctions, and we declined to impose costs on appeal against any of the parties.
The defendants have now filed a petition for reconsideration or, in the alternative, for rehearing en banc. *fn1 At the request of the court, the plaintiffs have filed a response, and the defendants have replied to the response. In their petition, the defendants contend, inter alia, that the defendants' conduct in allegedly requiring the Harrisons to walk through a line or "gauntlet" of deacons could not have coerced the Harrisons to contribute to the building fund because, according to the defendants, it is undisputed that the Harrisons' entire contribution predated their exposure to the "gauntlet." In their opposition, the plaintiffs have not contested this proposition, nor have they suggested that any portion of the Harrison's contribution was made after the "gauntlet" episode. *fn2 Under these circumstances, the defendants' assessment of the state of the record regarding the sequence of the events is unchallenged.
In Roberts-Douglas I, we explicitly observed that the question whether partial summary judgment was properly entered against the Harrisons was a close one. Id., A.2d at , slip op. at 42. We concluded that a genuine issue of material fact was presented as to whether or not the Harrisons' contribution was secured by undue influence. We reached this Conclusion on the basis of three significant factors. First, the size of the Harrisons' contribution (which they financed by obtaining a second mortgage) suggested the possibility of coercion. See Roberts-Douglas I, supra, A.2d at , , slip op. at 33-34, 42. Second, this was not a case limited to appeals from the pulpit to the congregation at large; Mrs. Harrison had sworn that she and her husband had been urged in their own home to sell that home or risk God's displeasure. Id. at , slip op. at 35, 41. Third, the Harrisons had allegedly been compelled to "run the gauntlet" of deacons. Id., A.2d at , slip op. at 40, 41. We considered all of these allegations in the context of the defendants' apparently relentless pursuit from the pulpit and elsewhere of contributions so substantial that they were allegedly well beyond some of the parishioners' means. Id., A.2d at , slip op. at 8-13, 35-40.
The plaintiffs having failed to challenge the defendants' representation that the Harrisons' contributions, in their entirety, predated these plaintiffs' experience with the line of deacons, the "gauntlet" component of the calculus has now been effectively eliminated. As we noted in Roberts-Douglas I with respect to the plaintiff Shirley Roberts-Douglas, the gauntlet episode "could not have retroactively induced the to contribute." Id. A.2d at n.31, slip op. at 43 n.31. We must therefore determine whether the Harrisons' remaining allegations were sufficient to defeat the defendants' motion. We now hold that no impartial juror could reasonably conclude on the basis of the summary judgment record (if the "gauntlet" evidence, which occurred after the fact, is eliminated from consideration) that the Harrisons proved that their contribution was induced by undue influence. See Beard v. Goodyear Tire & Rubber Corp, 587 A.2d 195, 198-99 (D.C. 1991) (standard for granting summary judgment substantially the same as that for directing verdict).
Excluding the "line of deacons" from the calculus, the only direct evidence of undue influence presented by the Harrisons was the allegation in Mrs. Harrison's answers to interrogatories that Donald Meares had told them, *fn3 on his initial visit, that they should sell their house. *fn4 If a "suggestion" to take such dramatic action is followed by an alleged attempt, through the device of a "gauntlet" of deacons, to shame the parishioner into doing what was asked, the combination of the two might reasonably be viewed as coercive, especially in the context of the defendants' overall campaign of solicitation. Without such a "follow-up," however, it is difficult to see how an impartial trier of fact could find that a contribution was obtained by "undue influence" on the basis of one isolated remark allegedly made by Donald Meares at the Harrisons' home on an initial visit.
The character of Meares' "suggestion" that the Harrisons sell their home might cause a reasonable juror to raise an eyebrow, and could well bring to his or her mind that most expressive word "chutzpah." The Harrisons, however, did not do what Meares asked them to do. In fact, they said they felt angry when he made the suggestion. There was evidence that at some point the Harrisons pledged $20,000, borrowed $24,000, but contributed $7900 to the church before leaving it. Absent from the record on summary judgment, though, is any statement by the Harrisons that they made this contribution as a result of coercive pressures by the defendants. Moreover, they provided no explanation of the circumstances under which they made the contribution. Thus, their showing was insufficient as a matter of law to support the claim that the defendants unduly or improperly coerced them into making the contribution or that they made the contribution because the defendants overbore their free will and caused them to do so. Roberts-Douglas I, supra, A.2d at , slip op. at 23-26; Himmelfarb v. Greenspoon, 411 A.2d 979, 984 (D.C. 1980).
Accordingly, the defendants' petition for rehearing is granted. Our decision in Roberts-Douglas I is modified to the extent that the trial court's entry of partial summary judgment in favor of the defendants on the undue influence claim as to Daniel and Mae Harrison is affirmed. All other requests by any party *fn5 for relief from or modification of this court's decision of November 3, 1992, are denied and, except as here modified, that decision is reaffirmed.
WAGNER, Associate Judge, Concurring in part and Dissenting in part: I concur in the court's decision on the undue influence issue. Appellees also seek rehearing and modification of this court's Disposition of the discovery issue and the fraud count. For the reasons set forth in my opinion in Roberts-Douglas I, Concurring in part and Dissenting in part, I would grant rehearing and affirm the trial court's ruling on the discovery motion and its judgment for appellees on the fraud count. See ...