Case 2:20-cv-00156-RWS Document 22-1 Filed 09/04/20 Page 1 of 45

UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF GEORGIA
GAINESVILLE DIVISION

CHURCHES UNITED WITH :

ISRAEL, INC., a Texas nonprofit :
Corporation; and MICHAEL :
EVANS, an individual, :
:
Plaintiffs, :
: CIVIL ACTION FILE
vs. :
: NO. 2:20-CV-00156-RWS
JENTEZEN FRANKLIN, an :
Individual; and FREE CHAPEL :
WORSHIP CENTER, INC., a :
Georgia nonprofit corporation, :
:
Defendants. :

MEMORANDUM OF LAW IN SUPPORT OF DEFENDANTS’

MOTION TO DISMISS PLAINTIFFS’ COMPLAINT
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TABLE OF CONTENTS

Page
TABLE OF AUTHORITIES ................................................................................. ii

INTRODUCTION....................................................................................................1

BACKGROUND ......................................................................................................5

LEGAL STANDARD ..............................................................................................7

DISCUSSION ...........................................................................................................8

A. Breach of Contract (Count 1) ..............................................................8

B. Fraud in the Inducement and Fraud in the Factum (Counts 2 and
3)............................................................................................................16
C. Negligent Misrepresentation (Count 4).............................................20
D. Misappropriation of Name or Likeness (Count 5)...........................23
E. Civil Conspiracy (Count 6) ................................................................26
F. Unjust Enrichment (Count 7) ............................................................28
G. Constructive Trust (Count 8) .............................................................29
H. Violation of Georgia Deceptive Trade Practices Act (Count 9) .....30
I. Injunctive Relief (Count 10) ...............................................................32

CONCLUSION.......................................................................................................35

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TABLE OF AUTHORITIES
Cases
AgSouth Farm Credit, ACA v. West, 352 Ga. App. 751, 760–61, 835 S.E.2d 730,
738 (2019) .........................................................................................................9, 10

Aldana v. Del Monte Fresh Produce, N.A., Inc., 416 F.3d 1242, 1253 (11th Cir.
2005) .......................................................................................................................7

Am. Dental Ass’n v. Cigna Corp., 605 F.3d 1283, 1290 (11th Cir. 2010) ................7

Ashcroft v. Iqbal, 556 U.S. 662, 678..........................................................................7

Associated Muts., Inc. v. Pope Lumber Co., 200 Ga. 487, 37 S.E. 2d 393 (1946)....9

Balabanos v. N. Am. Inv. Grp., 708 F. Supp. 1488, 1493 (N.D. Ill. 1988) ...... 20, 27

Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 547,545 (2007) ................................7

Brooks v. Blue Cross & Blue Shield of Fla., Inc., 116 F. 3d 1364, 1380-81 (11th
Cir. 1997) ....................................................................................................... 16, 19

Bullard v. MRA Holding, LLC, 292 Ga. 748, 752, 740 S.E.2d 622, 627–28 (2013)
.................................................................................................................. 23, 25, 26

Candy Craft Creations, LLC v. Gartner, No. CV 212-091, 2015 WL 1541507, at

*18–19 (S.D. Ga. Mar. 31, 2015) .........................................................................13

Catrett v. Landmark Dodge, Inc., 253 Ga. App. 639, 644, 560 S.E. 2d 101, 106
(2002) ....................................................................................................................30

City of Atlanta v. S. States Police Benevolent Ass’n of Ga., 276 Ga. App. 446, 458,
623 S.E.2d 557, 567 (2005) ..................................................................................33

Clark v. Aaron’s, Inc., 914 F. Supp. 2d 1301, 1309 (N.D. Ga. 2012) .............. 28, 29

ii
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Collins v. Athens Orthopedic Clinic, 347 Ga. App. 13, 23, 815 S.E.2d 639, 648
(2018) ....................................................................................................................18

Conley v. Gibson, 355 U.S. 41, 47 (1957) .................................................................7

Cook v. Robinson, 216 Ga. 328, 329, 116 S.E. 2d 742, 744-45 (1960)...................27

Culpepper v. Thompson, 254 Ga. App. 569, 570-71, 562 S.E.2d 837, 839 (2002)21,
26, 32

DaimlerChrysler Motors Co., LLC v. Clemente, 294 Ga. App. 38, 50, 668 S.E.2d
737, 749 (2008) .....................................................................................................21

Dombrowsky v. Patricia, No. 1:11-CV-3048-MHS, 2012 WL 12873617, at *4

(N.D. Ga. July 31, 2012).......................................................................................30

Dyches vs. McCorkle, 212 Ga. App. 209, 216, 441 S.E.2d 518, 523 (1994) .. 21, 26,
32

Griffin Bros., Inc. v. Town of Alto, 280 Ga. App. 176, 178, 633 S.E.2d 589, 591
(2006) ....................................................................................................................15

In re Haney, No. A20A0472, 2020 WL 3396355, at *3 (Ga. Ct. App. June 19,
2020) .....................................................................................................................33

In re World Access, Inc. Sec. Litig., 119 F. Supp. 2d 1348, 1353 (N.D. Ga. 2000) 16

In re WorldCom, Inc., No. 02-13533 AJG, 2007 WL 608113, at *4 (Bankr.

S.D.N.Y. Jan. 26, 2007) ........................................................................................12

Iraola & CIA, S.A. v. Kimberly-Clark Corp., 325 F.3d 1274, 1285 (11th Cir. 2003)
...........................................................................................................................9, 12

Jansen-Nichols v. Colonial Pipeline Co., 295 Ga. 786, 787, 764 S.E.2d 361, 362
(2014) ....................................................................................................................32
iii
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Jerry Dickerson Presents, Inc. v. Concert S. Chastain Promotions, 260 Ga. App.
316, 328–29, 579 S.E.2d 761, 772 (2003) ............................................................12

Key v. Naylor, Inc., 268 Ga. App. 419, 425, 602 S.E.2d 192, 197 (2004) ..............12

King v. Codisco, 217 Ga. App. 704, 705, 458 S.E.2d 881, 882 (1995) ...................21

Liberty Nat’l Bank & Trust Co. v. Diamond, 229 Ga. 677, 680 194 S.E. 2d 91, 93
(1972) ......................................................................................................................9

Midwest Grinding Co. v. Spitz, 976 F.2d 1016, 1020 (7th Cir. 1992) .....................19

Miller v. Lomax, 266 Ga. App. 93, 103, 596 S.E. 2d 232, 242 (2004) ....................27

Mills v. Polar Molecular Corp., 12 F.3d 1170, 1175 (2d Cir. 1993) ......................19

Mizzaro v. Home Depot, Inc., 544 F.3d 1230, 1237 (11th Cir. 2008) .......................8

Oxford Asset Mgmt., Ltd. v. Jaharis, 297 F.3d 1182, 1188 (11th Cir. 2002) ............7

Prince Heaton Enter., Inc. v. Buffalo’s Franchise Concepts, Inc., 117 F.Supp. 2d
1357, 1360 (N.D. Ga. 2000) .................................................................................17

Reidling v. Holcomb, 225 Ga. App. 229, 232, 483 S.E. 2d 624, 626 (1997) ..........28

Smith Serv. Oil Co. v. Parker, 250 Ga. App. 270, 272, 549 S.E.2d 485, 487 (2001)
...............................................................................................................................28

Somerson v. World Wrestling Entm’t, Inc., 956 F. Supp. 2d 1360, 1366-8 (N.D. Ga.
2013) .....................................................................................................................25

Terrill v. Electrolux Home Prod., Inc., 753 F. Supp. 2d 1272, 1291 (S.D. Ga. 2010)
...............................................................................................................................31

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TMX Fin. Holdings, Inc. v. Drummond Fin. Servs., LLC, 300 Ga. 835, 836–37, 797
S.E.2d 842, 844 (2017) .........................................................................................32

Toffoloni v. LFP Publ’g Grp., LLC, 572 F.3d 1201, 1206–07 (11th Cir. 2009) .....23

Troutman v. Troutman, 297 Ga. App. 62, 62-63, 676 S.E. 2d 787, 789 (2009)......29

U.S. ex rel. Clausen v. Lab. Corp., 290 F.3d 1301, 1313 (11th Cir. 2002) ...............8

Wagner v. First Horizon Pharm. Corp., 464 F.3d 1273, 1277 (11th Cir. 2006).......8

Waters v. Fleetwood, 212 Ga. 161, 167, 91 S.E.2d 344, 348 (1956) ......................24

Wheeler v. Bank of N.Y. Mellon, No. 17-CV-278-HLM-WEJ, 2018 WL 1954927,

at *2 (N.D. Ga, Jan. 22, 2018) ................................................................................7
Statutes
11A Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure §
2948.1 (3d ed. 2008) .............................................................................................34
O.C.G.A. § 10-1-373(b)(1) ......................................................................................32
O.C.G.A. § 13-3-2......................................................................................................9
O.C.G.A. § 13-3-40..................................................................................................13
O.C.G.A. § 13-5-30..................................................................................................14
O.C.G.A. § 3-12-132................................................................................................29
O.C.G.A. § 44-5-80..................................................................................................13
O.C.G.A. § 51-120 ...................................................................................................21
O.C.G.A. § 51-1-20................................................................................. 3, 21, 26, 32
O.C.G.A. §§ 13-3-1....................................................................................................9
Other Authorities
Rule 12(b)(6) ..........................................................................................................7, 8
Rule 9(b).................................................................................................. 8, 16, 17, 19

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INTRODUCTION

After voluntarily underwriting an extensive international fundraising

campaign and assuming the sole risk and financial responsibility for all expenses,

Pastor Jentezen Franklin’s ministry donated more than $1 million to assist Holocaust

survivors in Israel. (Compl. ¶ 18). Rather than thanking Pastor Franklin’s ministry

for this generous contribution, Plaintiffs Churches United with Israel, Inc. (“CUI”)

and Michael Evans (“Evans”) launched an inflammatory media campaign with self-

authored incendiary headlines designed to create and perpetuate misleading media

coverage and filed a meritless federal lawsuit accusing Pastor Franklin and the Free

Chapel of fraud and of breaching an “agree[ment] to collaborate” in assisting

Holocaust survivors, among other claims. (Id. at ¶ 9). Neither Pastor Franklin nor

the Free Chapel has misappropriated any funds whatsoever. Plaintiffs’ lawsuit is a

reprehensible effort, long on rhetoric but short on plausible allegations, to shake

down Pastor Franklin’s ministry for more money—money that Plaintiffs would have

go to Plaintiffs themselves, not the Holocaust survivors. (See, e.g., id. at ¶¶ 13, 18).

Plaintiffs seek to damage Pastor Franklin’s impeccable reputation and

ministry by falsely claiming he committed fraud through donating over

$1,000,000.00 in net funds raised from a voluntary fundraising campaign to aid

Holocaust survivors instead of the gross funds raised. (Id. at ¶ 18). Remarkably,

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Plaintiffs’ Complaint does not allege that the parties agreed that Pastor Franklin’s

ministry would donate the gross funds raised through the campaign. (Id. at ¶

10).1 This essential provision from the purported contract, like so many others, is

missing from the Complaint. Such glaring omissions expose Plaintiffs’ claims as

baseless. There was no contract, no fraud, but rather an unenforceable “agree[ment]

to collaborate” (Compl. ¶ 9) in helping Holocaust survivors. Inflammatory and false

accusations aside, the facts as alleged in Plaintiffs’ complaint do not give rise to a

legal claim for relief as a matter of law. Thus, Plaintiffs’ complaint should be

dismissed.

Plaintiffs’ claims fail primarily because Pastor Franklin and the Free Chapel

did not contract with Plaintiffs to further their core mission: to spread the Gospel of

Jesus Christ and to do so through charitable missions and otherwise. At most, Pastor

Franklin and his ministry “agreed to collaborate” (Compl. ¶ 9) on raising money to

donate to projects assisting Holocaust survivors. In other words, the ministry’s

fundraising efforts were voluntary, Spirit-led acts performed in the name of and on

behalf of Jesus Christ. Certainly, there was no malicious and willful intent to harm

1
In making this argument, Defendants do not acknowledge the accuracy of this
portion of the colloquy concerning the amount of money that would be raised during
the collaborative effort. Rather, accepting as true Plaintiffs’ allegations, those
allegations omit essential facts and are thus fatally ambiguous.
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the survivors or Plaintiffs. For that reason, Pastor Franklin and Free Chapel are

immune from suit under Georgia’s charitable immunity statute. O.C.G.A. § 51-1-

20.

Whatever an “agree[ment] to collaborate” may be, (Compl. ¶ 9), it is not

binding unless it is a valid and enforceable legal contract. Plaintiffs’ Complaint does

not allege a written contract exists that fleshes out the supposedly binding

agreement. Nor do Plaintiffs specify the material terms of the alleged agreement.

That failure is fatal: the parties could not legally enter a valid and enforceable

contract without coming to a meeting of the minds on material terms. In sum,

Plaintiffs do not allege sufficient plausible facts to demonstrate that a contract

existed, let alone that Pastor Franklin or Free Chapel breached any such contract.

Even if Plaintiffs’ Complaint adequately alleged the parties orally contracted,

such a contract would be unenforceable under the law. To start, it would be barred

by the Statute of Frauds. Taking Plaintiffs’ allegations at face value, the supposed

contract related to donations raised over the course of more than 12 months to fund

real estate developments for Holocaust survivors. (Compl. ¶¶ 8, 13, 16). Further,

Plaintiffs do not allege that Plaintiff Evans as a “founder” of CUI (id. at ¶ 8) had the

authority to bind CUI, an association of churches with respective leadership, or that

Pastor Franklin contracted individually, rather than in his representative capacity

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(though he is sued personally).

Given Plaintiffs admit that Pastor Franklin’s ministry donated $1.2 million in

gifts raised during the fundraising campaign for Holocaust survivors, (id. at ¶ 18),

they do not—and cannot—plausibly allege harm, let alone an intent to harm. To

the extent there was a contract (there wasn’t), any obligations assumed thereby were

satisfied by the $1.2 million donation Plaintiffs admit receiving. (Compl. ¶ 18).

Indeed, Plaintiffs allege the apartment complex renovated for the survivors is now

ready for occupancy, some three years after the alleged agreement in December

2017. (Id. at ¶¶ 13, 18).2

Plaintiffs cannot save their lawsuit by alleging Pastor Franklin and/or Free

Chapel misrepresented information to “the public” while fundraising. (Id. at ¶ 14).

Not only is that factually false, it is legally a non-starter because Plaintiffs do not

have standing to enforce any arguable contract between donors and Pastor Franklin

and/or the Free Chapel. Plaintiffs are not the third-party beneficiaries of any such

potential contract, Holocaust survivors are. Plaintiffs admit as much, alleging that

the “Projects” in the Complaint were to be developed for “Holocaust survivors,” not

Plaintiffs. (Id. at ¶ 8).

2
Defendants have not been able to confirm whether any Holocaust survivor
currently is actually residing in any of the apartments specified.
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For these, and other reasons discussed, Plaintiffs’ Complaint should be

dismissed with prejudice. At most, Pastor Franklin’s ministry “agreed to

collaborate” with Plaintiffs to assist Holocaust survivors. Pastor Franklin’s ministry

fulfilled that non-binding agreement by donating over $1 million for the cause.

BACKGROUND

Pastor Franklin is an evangelical pastor, author, and televangelist. Since 1989,

he has served as the Senior Pastor of the Free Chapel, a multi-site church principally

based in Gainesville, Georgia. In its early days, the Free Chapel was a small

congregation of approximately 300 people. Over the years the Free Chapel has

grown to over 14,000 members with annual third-party audited financials to maintain

proper books and records. At all times pertinent to the events alleged, Pastor

Franklin’s television evangelism ministry, “Kingdom Connections,” broadcast 65

times per week to over 120 countries (now up to 200 countries) in six different

languages. Separate and apart from the collaboration with Plaintiff Evans, Pastor

Franklin’s ministry has independently donated millions of dollars to other charitable

projects in Israel.

Producing televised outreach efforts for a worldwide audience in over 120

countries in six languages is a very expensive undertaking. For many years,

however, after production expenses were deducted from viewer donations, Pastor

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Franklin’s television ministry has donated millions of dollars worldwide that were

raised through humanitarian aid fundraising campaigns. This work is perfectly

consistent with the ministry’s mission of building God’s Kingdom here on Earth.3

Plaintiffs approached Pastor Franklin in connection with his television

ministry about providing financial assistance for a real estate development project

in Jerusalem, Israel, described in Plaintiffs’ Complaint. The principal purpose of the

project was to purchase, renovate and develop real property with the amenities

described in Plaintiffs’ Complaint. (¶¶ 8, 13). Plaintiffs asked Pastor Franklin if his

ministry could assist in raising funds to benefit Holocaust survivors. Pastor Franklin

did not need the Plaintiffs’ assistance to raise funds through his television ministry.

As Plaintiffs allege, after verbal, in-person discussions in the fall of 2017, Pastor

Franklin “agreed to collaborate” with Plaintiff Evans to benefit the Holocaust

survivors living in Jerusalem. (Compl. ¶ 9). To assist, Pastor Franklin carried out

an extensive fundraising campaign. Pastor Franklin’s ministry donated $1.2 million

in funds raised.4

3
As an example, over the last 9 years the ministry has donated over $14 million to
worthwhile projects in Ghana, Haiti, and Israel. For background and context only,
see https://www.youtube.com/watch?v=7CFwio_rkYQ, a brief video explaining the
“Kingdom Connections” ministry.
4
Despite being requested, Plaintiffs have never provided Pastor Franklin with an
accounting of how the funds were used.
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LEGAL STANDARD

To withstand dismissal under Rule 12(b)(6) for failure to state a claim, a

complaint must contain “enough facts to state a claim to relief that is plausible on its

face” and “to give defendant fair notice of what the … claim is and the grounds upon

which it rests.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 547, 545 (2007)

(quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)). Plaintiffs must plead “factual

content that allows the court to draw the reasonable inference that the defendant is

liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678. “The mere

possibility that the defendant might have acted unlawfully is not sufficient to allow

a claim to survive a motion to dismiss.” Wheeler v. Bank of N.Y. Mellon, No. 17-

CV-278-HLM-WEJ, 2018 WL 1954927, at *2 (N.D. Ga, Jan. 22, 2018). “Naked

assertion[s],” “labels and conclusions,” or “formulaic recitation[s] of the elements

of a cause of action will not do.” Twombly, 550 U.S. at 555, 557. Conclusory

allegations, unwarranted deductions of fact, or legal conclusions masquerading as

fact will not prevent dismissal. Oxford Asset Mgmt., Ltd. v. Jaharis, 297 F.3d 1182,

1188 (11th Cir. 2002); Am. Dental Ass’n v. Cigna Corp., 605 F.3d 1283, 1290 (11th

Cir. 2010); Aldana v. Del Monte Fresh Produce, N.A., Inc., 416 F.3d 1242, 1253

(11th Cir. 2005).

Claims for fraud must comply with the heightened pleading standard of Rule

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9(b), which requires parties alleging fraud to “state with particularity the

circumstances constituting fraud.” Mizzaro v. Home Depot, Inc., 544 F.3d 1230,

1237 (11th Cir. 2008) (quoting Fed R. Civ. P. 9(b)). Rule 9(b)’s particularity

requirement is to “ensure[] that the defendant has sufficient information to formulate

a defense by putting it on notice of the conduct complained of.” Wagner v. First

Horizon Pharm. Corp., 464 F.3d 1273, 1277 (11th Cir. 2006). “When Rule 9(b)

applies … [the Court] cannot be left wondering whether [the] plaintiff has offered

mere conjecture or a specifically pleaded allegation on an essential element of the

lawsuit.” U.S. ex rel. Clausen v. Lab. Corp., 290 F.3d 1301, 1313 (11th Cir. 2002).

DISCUSSION

A. Breach of Contract (Count 1)

Count 1 of the Complaint does not plausibly allege the parties entered a

binding and enforceable contract (oral or written) and, therefore, should be

dismissed. See Fed. R. Civ. P. 12(b)(6). First, the Complaint omits mention of

material terms that are essential to establishing the alleged contract existed. That

defect is fatal because the parties could not contract as a matter of law unless they

came to a meeting of the minds as to material terms. Second, the Complaint does

not allege Pastor Franklin’s ministry received consideration, which is essential to

plausibly alleging the parties contracted. Third, and in the alternative, even if there

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were an oral contract between the parties, it is barred by the Statute of Frauds

because the alleged agreement concerned real estate developments and required

performance over more than 12 months. Fourth, Plaintiffs have not alleged they

suffered any harm due to the alleged breach.

To constitute a lawful contract, “there must be parties able to contract, a

consideration moving to the contract, the assent of the parties to the terms of the

contract, and a subject matter upon which the contract can operate.” O.C.G.A. §§

13-3-1. “The consent of the parties being essential to a contract, until each has

assented to all the terms, there is no binding contract.” O.C.G.A. § 13-3-2; see also

AgSouth Farm Credit, ACA v. West, 352 Ga. App. 751, 760–61, 835 S.E.2d 730, 738

(2019) (“If there is any essential term upon which agreement is lacking, no meeting

of the minds of the parties exists, and a valid and binding contract has not been

formed.”); Iraola & CIA, S.A. v. Kimberly-Clark Corp., 325 F.3d 1274, 1285 (11th

Cir. 2003) (“[A] party cannot recover in a breach of contract action unless there was

a ‘meeting of the minds’ upon the essential terms of the agreement.”); Associated

Muts., Inc. v. Pope Lumber Co., 200 Ga. 487, 37 S.E. 2d 393 (1946). For a contract

to be enforceable, its terms must be certain, clear, definite, and precise enough that

neither party can reasonably misunderstand their respective obligations. Liberty

Nat’l Bank & Trust Co. v. Diamond, 229 Ga. 677, 680 194 S.E. 2d 91, 93 (1972).

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“The party asserting the existence of a contract has the burden of proving its

existence and its terms.” AgSouth Farm Credit, 352 Ga. App. at 760–61, 835 S.E.2d

at 738.

Here, Plaintiffs do not plausibly allege a valid and enforceable contract

because virtually all the essential elements of the alleged contract are missing from

the Complaint. At most, Plaintiffs’ Complaint alleges that Pastor Franklin and the

Free Chapel “agreed to collaborate” with Plaintiffs by raising funds over more than

12 months for a vaguely described real estate project somewhere “on Rivlin Street,

in Jerusalem, Israel,” where a donor wall purportedly was located. (Compl. ¶¶ 9, 13,

17). Allegedly, Defendant Franklin individually promised to remit donated funds,

as did the Free Chapel, at $100,000 per month over an indefinite period. (Id. at ¶

10). The parties supposedly consummated the contract on or about December 13,

2017, (id. at ¶ 9), and Defendants allegedly breached it twenty (20) months later, on

or about August 26, 2019, (id. at ¶ 16). The rest of the contract terms—material and

otherwise—are not specified in Plaintiffs’ Complaint.

Plaintiffs’ failure to allege the essential terms of the purported contract is not

just sloppy pleading, it also exposes Plaintiffs’ claims as meritless—the parties never

intended to contract and thus never came to a meeting of the minds as to a host of

material terms. If Pastor Franklin and the Free Chapel had entered into a binding

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multimillion-dollar contract with Plaintiffs, as is alleged, then Plaintiffs presumably

would have specified the material terms of that contract in their Complaint. The list

of material terms omitted from the Complaint is long and revealing: (i) The specific

address of the project(s) in Jerusalem; (ii) The time and place where the contract was

agreed upon; (iii) Whether Pastor Franklin’s ministry would donate a sum certain,

the gross funds raised, or the net funds raised after the costs of the fundraising were

deducted; (iv) The method, manner, and means by which donations were to be

solicited; (v) The efforts to be undertaken and costs to be incurred in connection with

solicitation of donations; (vi) Which of the contracting parties would bear the costs

associated with the fundraising; (vi) Whether the real estate to be developed was

exclusively for Holocaust survivors, and what if any rent the survivors would be

charged; (vii) How the facilities would be used after there were no remaining

Holocaust survivors; (viii) In whose name the building(s) were to be titled; (ix) What

would happen to any remaining donations if the project costs were less than the

donations provided; (x) The estimated total project costs and when Pastor Franklin

would be notified of progress against the budget; (xi) How the funds would be

accounted for by Plaintiffs so as to demonstrate the donations were actually used as

intended. The list could go on and on.

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The omission of these essential contract terms, among others, is fatal to

Plaintiffs’ contract claim. See, e.g., Jerry Dickerson Presents, Inc. v. Concert S.

Chastain Promotions, 260 Ga. App. 316, 328–29, 579 S.E.2d 761, 772 (2003)

(holding parties did not come to a meeting of the minds because they did not agree

to “essential terms,” such as “the annual percentage of net profits … to be paid”);

see also Key v. Naylor, Inc., 268 Ga. App. 419, 425, 602 S.E.2d 192, 197 (2004)

(holding “promise to give [Plaintiff] 20 percent of the stock of [Defendant

company]” was unenforceable because the promise “was anything but definite both

as to which stock was to be conveyed and when or if the transfer was to be made …

Did [majority stock owner] mean 20 percent of the number of his shares or the

company’s shares, or 20 percent by value of his stock or the company’s stock?”);

Iraola & CIA, S.A. v. Kimberly-Clark Corp., 325 F.3d 1274, 1286 (11th Cir. 2003)

(rejecting breach of contract claim where the parties did not come to a meeting of

the minds as to “exclusivity,” which was an “essential” term); see also In re

WorldCom, Inc., No. 02-13533 AJG, 2007 WL 608113, at *4 (Bankr. S.D.N.Y. Jan.

26, 2007) (holding the “scope” of the agreement was “necessarily a material term”).

At most, the parties merely “agreed to collaborate” on a Gospel-centered

aspiration—helping the needy. That is not enough to establish the parties entered

into a binding contract. See, e.g., Candy Craft Creations, LLC v. Gartner, No. CV

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212-091, 2015 WL 1541507, at *18–19 (S.D. Ga. Mar. 31, 2015) (finding oral

statement, “trust us and we’ll work together as partners,” may have shown a

“vague … aspiration,” but was not “definitive” and did not establish “assent” to

essential contract terms).

Another reason Count 1 falls short is that Plaintiffs do not plausibly allege that

Pastor Franklin’s ministry received legal consideration in exchange for the $1.2

million donation Plaintiffs admit receiving. (Compl. ¶ 18). Absent valid

consideration, the donations made constitute a gift. Compare O.C.G.A. § 44-5-80

(providing that a valid inter vivos gift requires that the donor intended to give the

gift, the recipient accepted the gift, and the gift was delivered) with O.C.G.A. § 13-

3-40 (“A consideration is essential to a contract which the law will enforce.”). The

consideration alleged to exist is illusory and contrived, (Compl. ¶ 11), and in no way

benefits Pastor Franklin or his ministry. For example, the Donor’s Wall benefits the

donors, not Pastor Franklin and the Free Chapel. (Id.) Likewise, providing

“publicity” for Defendants is not valuable because Pastor Franklin’s outreach

ministry reaches 120 countries in six languages and broadcasts 65 times per week.

(Id.) Nor did Pastor Franklin receive benefit from “trad[ing]” on Plaintiff Evans’

“personal reputation and credibility.” (Id.) Indeed, it was because Plaintiff Evans

needed Pastor Franklin’s assistance that he approached Pastor Franklin. A mere

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introduction to “persons of influence” in Israel (which has not happened anyway)

would also not constitute any benefit to Pastor Franklin because he visited Israel for

many years before this requested assistance and he continues through his own

networks to raise funds for humanitarian relief work in the State of Israel and

elsewhere. (Id.) In total, the contrived benefits for a multi-million dollar

undertaking, allegedly orally “conferred,” were not needed and did not benefit

Pastor Franklin or the Free Chapel. Indeed, the value received by Pastor Franklin

and his ministry comes from the knowledge that they are doing God’s work—not

because of any favor allegedly conferred upon them by Plaintiffs.

Even if Plaintiffs plausibly alleged a contract was formed (they have not), it

would not be enforceable. Under O.C.G.A. § 13-5-30, “any contract for sale of

lands, or any interest in or concerning lands” and “any agreement that is not to be

performed within one year from the making thereof” is only “binding” if it is “in

writing.” (emphasis added). Here, Plaintiffs allege the parties orally “agreed to

collaborate” on the real estate development project through soliciting donations over

more than 12 months. (See, e.g., Compl. ¶ 9). Indeed, Plaintiffs allege the oral

contract was breached some 20 months after creation. (Id. at ¶¶ 9, 16). Thus, the

alleged oral contract is not binding under Georgia’s State of Frauds.

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Yet another problem with Plaintiffs’ Complaint is the lack of clarity about

Plaintiff Evans’s authority to bind CUI, which is an association of churches.

Plaintiffs allege that in dinner conversations and subsequent discussions Plaintiff

Evans represented that he was the “founder” of CUI. (Complaint ¶¶ 8, 9). But

Plaintiffs do not allege that as a “founder” Evans had the capacity to legally bind an

association of churches to a contract. See, e.g., Griffin Bros., Inc. v. Town of Alto,

280 Ga. App. 176, 178, 633 S.E.2d 589, 591 (2006) (“Because the mayor lacked

authority to unilaterally bind the Town to a contract [], any contract asserted [] was

unauthorized.”)

Finally, there is no harm to Plaintiffs. Apparently, Plaintiffs contend that any

Christian ministry that agrees to participate in a humanitarian project abroad must

continue to do so even if other humanitarian needs are greater in different parts of

the world and even if a real estate project is completed, and “ready for occupancy.”

(Compl. ¶ 13). How can a humanitarian relief effort resulting in donations of over

$1 million harm Plaintiffs? Such a suggestion is absurd.

Therefore, Plaintiffs’ allegations as to Count 1 are not viable and should be

dismissed.5

5
To the extent Plaintiffs are claiming Pastor Franklin and the Free Chapel breached
a contract with donors, Plaintiffs do not have standing to enforce any such alleged
contract because Holocaust survivors were the third-party beneficiaries of the
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B. Fraud in the Inducement and Fraud in the Factum (Counts 2 and 3)

Plaintiffs’ Complaint fails to allege fraud with the particularity required by

Rule 9(b) and thus Counts 2 and 3 should be dismissed. See Fed. R. Civ. P. 9(b).

To satisfy Rule 9(b), Plaintiffs’ fraud allegations must identify: “(1) the

precise statements, documents, or misrepresentations made; (2) the time, place, and

person responsible for the statement; (3) the content and manner in which these

statements misled Plaintiffs; and (4) what the Defendants gained by the alleged

fraud.” Brooks v. Blue Cross & Blue Shield of Fla., Inc., 116 F. 3d 1364, 1380-81

(11th Cir. 1997). More colloquially, allegations of fraud must specify “the who,

what, when, where, and how” of Defendants’ allegedly fraudulent behavior. In re

World Access, Inc. Sec. Litig., 119 F. Supp. 2d 1348, 1353 (N.D. Ga. 2000)

(quotation marks, alteration, and citation omitted). Further, “[i]n Georgia, the

common law tort of fraud requires five elements: (1) a false representation by the

[Defendants]; (2) with scienter, or knowledge of the falsity; (3) with intent to deceive

the [Plaintiffs] or to induce the [Plaintiffs] into acting or refraining to act; (4) on

donations, not Plaintiffs Mike Evans or CUI. (Compl. ¶¶ 8, 13). While Plaintiffs
seek to sidestep their standing problem through their ipse dixit conclusory allegation
that they were the “intended recipient and third-party beneficiary of the funds
solicited,” (id. at ¶ 24), that is wrong. The only way Plaintiffs theory would work is
if Pastor Franklin and the Free Chapel agreed to donate the money raised to benefit
Plaintiffs per se, not the Holocaust survivors. But that did not happen and is not
alleged.
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which the [Plaintiffs] justifiably relied; (5) with the proximate cause of damages to

the [Plaintiffs].” Prince Heaton Enter., Inc. v. Buffalo’s Franchise Concepts, Inc.,

117 F.Supp. 2d 1357, 1360 (N.D. Ga. 2000). In other words, the starting point is

identification of the alleged false representation(s).

Here, Plaintiffs’ Complaint contains critical deficiencies under Rule 9(b); the

“who, what, when, where, and how” is missing. The information alleged is so vague

and ambiguous as to require Defendants to speculate about how they allegedly

defrauded Plaintiffs by offering to help raise charitable donations during an outreach

ministry effort. As an example of the deficiencies with Plaintiffs’ fraud allegations,

paragraph 14 of Plaintiffs’ Complaint alleges that Pastor Franklin individually and

on behalf of the Free Chapel represented to the “public” that the Prime Minister of

Israel, Benjamin Netanyahu, requested Pastor Franklin support the projects and that

Defendants are owners of the property on Rivlin Street. Plaintiffs allege that such

representations were not true. Regardless, how could such statements, even if made,

constitute the tort of fraud against Plaintiffs? There is no averment that they were

made with the intent to deceive Plaintiffs or to induce Plaintiffs from acting or

refraining to act. There is no allegation that Plaintiffs justifiably relied upon these

alleged false statements or that these statements proximately caused damages to

Plaintiffs. These are essential elements of the tort of fraud, and yet Plaintiffs do not

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allege how any such representations induced Plaintiffs into acting or refraining to

act, on what basis they justifiably relied on the representations, and how they

suffered damages as a result of the representations.

Further, Plaintiffs’ Complaint fails to specify viable misrepresentations about

which they have standing to sue. If Plaintiffs’ position is that Pastor Franklin’s and

the Free Chapel’s alleged misrepresentations to the “public” form the basis for the

fraud claims, that theory is flawed. (Compl. ¶ 14). Plaintiffs do not specify how

they suffered harm because of the alleged fraud on the “public.” As such, they do

not have standing to raise such claims. See, e.g., Collins v. Athens Orthopedic Clinic,

347 Ga. App. 13, 23, 815 S.E.2d 639, 648 (2018) (“Standing requires, among other

things, that the plaintiffs have suffered an injury in fact.”) (citation omitted).

If Plaintiffs’ fraud claim is based on Pastor Franklin and the Free Chapel

allegedly representing to Plaintiffs that they would donate “100% of the funds

collected,” rather than a sum certain (Compl. ¶ 10), that theory is deficient too.

Assuming the allegation is true, as is required, there is an obvious missing allegation:

whether Pastor Franklin’s ministry agreed to donate gross funds collected or net

funds collected. If it is the latter, there is not even a false statement alleged because

Plaintiffs have not claimed that Pastor Franklin’s ministry failed to remit donations

from net funds. Given Plaintiffs’ Complaint does not say anything about “net” or

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“gross,” the logical conclusion is that Plaintiffs concede the parties did not discuss

it or agree upon it. Given that, what is the false statement? How did Pastor Franklin

and the Free Chapel induce Plaintiffs to act or to refrain from acting? And what is

the basis for scienter?

Moreover, Plaintiffs’ fraud allegations must be dismissed pursuant to Rule

9(b) because Plaintiffs impermissibly lump Defendants together and do not articulate

with the requisite particularity the circumstances purportedly constituting Pastor

Franklin’s or the Free Chapel’s role in the fraud. Because “fair notice is perhaps the

most basic consideration underlying Rule 9(b),” this Circuit has held that “in a case

involving multiple defendants … the complaint should inform each defendant of the

nature of his alleged participation in the fraud” and may not “simply lump[] together

all of the Defendants in [its] allegations of fraud.” Brooks, 116 F.3d at 1381 (internal

quotation marks, alteration, and citation omitted); see also Midwest Grinding Co. v.

Spitz, 976 F.2d 1016, 1020 (7th Cir. 1992) (Rule 9(b) requires “reasonably

notify[ing] the defendants of their purported role in the scheme”); Mills v. Polar

Molecular Corp., 12 F.3d 1170, 1175 (2d Cir. 1993) (“Rule 9(b) is not satisfied

where the complaint vaguely attributes the alleged fraudulent statements to

‘defendants.’”); Balabanos v. N. Am. Inv. Grp., 708 F. Supp. 1488, 1493 (N.D. Ill.

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1988) (“[T]he complaint should inform each defendant of the specific fraudulent act

that constitutes the basis of the action against the particular defendant.”).

Without a valid contract by and between the parties, it is difficult to

understand how Pastor Franklin and the Free Chapel supposedly defrauded

Plaintiffs. At most, the parties merely “agreed to collaborate” on raising funds to

benefit Holocaust survivors. Plaintiffs acknowledge they received gifts of $1.2

million (Compl. ¶ 18) but fail to specify when, where, how, and to whom any false

or misleading statements were made, what was materially false or misleading about

them, whether Pastor Franklin or the Free Chapel knew the statements to be false or

misleading at the time they made them, and/or how Plaintiffs relied upon the

statements to their detriment.

Therefore, Counts 2 and 3 are legally deficient and should also be dismissed.

C. Negligent Misrepresentation (Count 4)

The Complaint provides no specifics whatsoever as to Count 4, and as such,

it fails too.

“[T]he essential elements of negligent misrepresentation are: (1) the

defendant’s negligent supply of false information to foreseeable persons, known or

unknown; (2) such persons’ reasonable reliance upon that false information; and (3)

economic injury proximately resulting from such reliance.” DaimlerChrysler

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Motors Co., LLC v. Clemente, 294 Ga. App. 38, 50, 668 S.E.2d 737, 749 (2008). To

adequately allege negligent misrepresentation, Plaintiffs needed to allege definite

statements, not “generalized representations.” Id. (“[G]eneralized representations

cannot serve as the basis for a fraud or negligent misrepresentation claim.”); see also

King v. Codisco, 217 Ga. App. 704, 705, 458 S.E.2d 881, 882 (1995).

Notably, Plaintiffs incorporated by reference not only the generalized

allegations of paragraphs 1-21 of the Complaint, but also all the prior allegations,

including those relating to fraud. (Compl. ¶ 39). Thus, through their shotgun

pleading, Plaintiffs undercut their own allegations of “negligence” and allege, with

no specifics provided, that Defendants failed to use “reasonable care” in their

fundraising activities, whatever that means. This “negligence” Count is barred in

any event by Georgia’s charitable immunity statute (O.C.G.A. § 51-1-20). To deny

a Christian charity the benefit of the immunity, it must be established that the

Defendants acted maliciously and with willful and wanton intent to cause harm. See

Culpepper v. Thompson, 254 Ga. App. 569, 570-71, 562 S.E.2d 837, 839 (2002);

Dyches vs. McCorkle, 212 Ga. App. 209, 216, 441 S.E.2d 518, 523 (1994). No such

allegation could be made for a “negligence” claim. Dyches, 212 Ga. App. at 216

(holding that O.C.G.A. § 51-1-20’s references to bad faith and willful or wanton

misconduct do not “embrace negligence”). As this Count is facially devoid of any

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specifics as to each Defendant, it is impossible to answer in any event and fails to

state an actionable claim against either.

To the extent Plaintiffs’ Complaint provides appropriate detail about the

alleged misrepresentations, Count 4 is still deficient. As noted on pages 14-15,

Plaintiffs do not have standing to sue for any purported misrepresentations to

members of the “public” that Pastor Franklin or the Free Chapel may have solicited

for donations.6 If Plaintiffs claim Pastor Franklin or the Free Chapel made a

misrepresentation to them directly, what was it? That Pastor Franklin represented

he would donate “100% of the funds raised”? (Compl. ¶ 10). Plaintiffs do not allege

that Pastor Franklin and the Free Chapel agreed to donate the gross funds raised. As

such, Plaintiffs fail to allege Pastor Franklin or Free Chapel made any false

statements to Plaintiffs because Plaintiffs do not allege that Pastor Franklin’s

ministry failed to remit donations from net funds. Nor is it sufficiently alleged how

false statements about such funds show Plaintiffs “reasonabl[y] reli[ed]” and

suffered “economic injury proximately resulting from such reliance,” particularly

6
Plaintiffs’ standing issues under Count 1 arise because they are not parties to any
alleged contract between Pastor Franklin’s ministry and donors, nor are they third-
party beneficiaries of any such contract. As to the remaining counts, Plaintiffs do
not have standing to sue for alleged harm that donors or members of the public
purportedly suffered because of supposed misrepresentations by Pastor Franklin’s
ministry. Injury in fact is a requirement of standing and Plaintiffs do not allege how
any claimed misrepresentations to the public injured Plaintiffs.
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where Plaintiffs admit Pastor Franklin’s ministry donated $1.2 million. (Compl. ¶

18).

Therefore, this Court should dismiss Count 4 with prejudice.

D. Misappropriation of Name or Likeness (Count 5)

Plaintiffs’ vague and conclusory allegations about misappropriation fall short,

and for that reason, Count 5 should be dismissed.

“An appropriation of likeness claim in Georgia consists of the following

elements: (1) the appropriation of another’s name and likeness, … (2) without

consent, [and] (3) for the financial gain of the appropriator.” Bullard v. MRA

Holding, LLC, 292 Ga. 748, 752, 740 S.E.2d 622, 627–28 (2013) (internal citation

omitted). “No one has the right to object merely because his name or his appearance

is brought before the public, since neither is in any way a private matter, and both

are open to public observation. It is only when the publicity is given for the purpose

of appropriating to the defendant’s benefit the commercial or other values associated

with the name or the likeness that the right to privacy is invaded.” Toffoloni v. LFP

Publ’g Grp., LLC, 572 F.3d 1201, 1206–07 (11th Cir. 2009) (quoting Restatement

(Second) of Torts); see also 77 C.J.S. Right of Privacy and Publicity (“Mere

publication of a person’s name and likeness is not enough.”). Further, the right to

free speech protects the right to publicize newsworthy information and matters of

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public concern. See, e.g., Waters v. Fleetwood, 212 Ga. 161, 167, 91 S.E.2d 344,

348 (1956).

As to the first two prongs of the test (i.e., appropriation without consent),

Plaintiffs’ allegations are impermissibly vague and fail to state a plausible claim for

relief. 7 (See, e.g., Complaint, ¶ 44 (“Evans can be identified from the publication

of numerous video appeals by Defendants for the solicitation of charitable funds.”).)

Assuming arguendo that “can be identified” means Plaintiff Evans’s name and/or

likeness was actually appropriated, then how was it appropriated, let alone

misappropriated? If Plaintiff Evans means that he personally appeared in a video,

for example, then he obviously consented to the appearance and there would be no

basis for a misappropriation claim.8

7
Though Plaintiffs do not specify that Count 5 is only brought by Plaintiff Evans,
their Complaint contains no allegations that Plaintiff CUI’s name and/or likeness
was misappropriated (assuming arguendo the association of churches has a name
and/or likeness that could be misappropriated). Thus, Count 5 should be dismissed
with prejudice as to Plaintiff CUI.
8
The confusion caused by Plaintiffs’ vague allegations is compounded by Plaintiffs’
non-sensical allegation that “by advertising the donors’ wall, which is [Plaintiffs’]
property,” Pastor Franklin’s ministry “appropriated for their own use or benefit …
Evans’s name and likeness.” (Id. at ¶46). Plaintiff Evans cannot successfully argue
that his name and/or likeness was misappropriated because an advertisement showed
a wall that he owns. To misappropriate Plaintiff Evans’s name and likeness, Pastor
Franklin’s ministry must have first appropriated Plaintiff Evan’s name and likeness.
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As to the third prong (i.e., the misappropriation was for the financial benefit

of the appropriator), Plaintiffs do not plausibly allege that Pastor Franklin personally

or the Free Chapel corporately profited financially from the alleged

misappropriation. Plaintiffs suggest Pastor Franklin’s ministry benefitted from the

“reputation, prestige, and standing … of Evans’s name and likeness.” That is not

enough. Bullard, 292 Ga. at 752, 740 S.E.2d at 627–28 (“financial gain of the

appropriator” is an “element” of “an appropriation of likeness claim in Georgia”).

Also, Plaintiffs’ concede the funds were “charitable,” not “financial gain.” (Compl.

¶ 45).

The First Amendment of the U.S. Constitution also protects the speech at

issue, though Plaintiffs sweepingly claim without support that the purported

misappropriation was “not in an incidental manner or for a newsworthy purpose.”

(Compl. ¶ 43). Such conclusory allegations are implausible considering that

providing charitable assistance to Holocaust survivors is both newsworthy and

information of legitimate public concern. See, e.g., Somerson v. World Wrestling

Entm’t, Inc., 956 F. Supp. 2d 1360, 1366-8 (N.D. Ga. 2013). Also, if Plaintiff Evans

“can be identified” through a wall that appears in the videos, (Compl. ¶¶ 44, 46), that

is purely incidental and thus non-actionable, Somerson, 956 F. Supp. 2d at 1366.

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Assuming arguendo Pastor Franklin’s ministry was liable for

misappropriation, Plaintiffs would still not be entitled to recover the damages

sought. The tort of misappropriation does not permit recovery of general damages,

only “the value of the use of the appropriated publicity.” Bullard, 292 Ga. at 754,

740 S.E.2d at 627–28. Pastor Franklin’s ministry had a well-established track-record

of successful fundraising campaigns for Christian missions around the world. It did

not need Plaintiffs’ assistance to raise funds. Indeed, Plaintiffs approached Pastor

Franklin’s ministry about collaborating. Thus, the “value of the use of the

appropriated publicity” is nil here.9

E. Civil Conspiracy (Count 6)

Plaintiffs claim in conclusory fashion that “Defendants acted in concert to

defraud and damage Plaintiffs as alleged.” (Compl. ¶ 49). It is further alleged that

Defendants undertook one or more unlawful acts including “defrauding the general

public” and Plaintiffs. (Compl. ¶ 51). Defendants deny these spurious allegations,

but given the way they are drafted, there is no way for the Defendants individually

or collectively to respond to them. Dismissal is required because no specifics

9
This Count is also barred by Georgia’s charitable immunity statute (O.C.G.A. §
51-1-20). See, e.g., Culpepper, 254 Ga. App. at 570-71; see also Dyches, 212 Ga.
App. at 215-6.
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whatsoever are provided relative to the acts of each Defendant. Balabanos, 708 F.

Supp. at 1493.

To recover damages under Georgia law on a civil conspiracy claim, “[a]

plaintiff must show that two or more persons, acting in concert, engaged in conduct

that constitutes a tort. Absent an underlying tort, there can be no liability for civil

conspiracy.” Miller v. Lomax, 266 Ga. App. 93, 103, 596 S.E. 2d 232, 242 (2004).

A conspiracy does not, of itself, furnish a cause of action. Cook v. Robinson, 216

Ga. 328, 329, 116 S.E. 2d 742, 744-45 (1960). Rather, a conspiracy only exists if

there is a viable underlying cause of action which is the subject of the conspiracy.

Id. at 329, S.E. 2d at 745.

Plaintiffs fail to adequately plead that Pastor Franklin conspired with

anybody. His ministry does not need the permission of Plaintiffs to make financial

contributions to worthwhile charitable endeavors. Plaintiffs do not have a patent or

trademark on fundraising campaigns in the Country of Israel, nor do they have a

patent or trademark with respect to helping Holocaust survivors in Jerusalem. As it

is the mission of Pastor Franklin’s ministry to help people to the extent it can and

spread the good news of the Gospel, it is outrageous for Plaintiffs to suggest that

Defendants have conspired to commit fraud in their laudable attempts to provide

Christian and humanitarian aid to those in need.

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Here, Pastor Franklin had no unlawful purpose in the solicitation of donations

through his television ministry, nor did he use any unlawful means in outreach

efforts to collect and disburse donations. The purpose of the “agree[ment] to

collaborate” was to support Holocaust survivors. This purpose (prayerfully

incorporated into Defendants’ outreach ministry per the request of Plaintiffs)

certainly had no unlawful objective nor, respectfully, could it ever be a tort for a

Christian ministry to try to help those in need. There is no enforceable oral contract

for the reasons stated on pages 8-15. Thus, Count 6 should be dismissed.

F. Unjust Enrichment (Count 7)

Count 7 fails because Plaintiffs do not allege Defendants received a benefit.

Under Georgia law, “‘the theory of unjust enrichment applies when there is

no legal contract and when there has been a benefit conferred which would result in

an unjust enrichment unless compensated.’” Clark v. Aaron’s, Inc., 914 F. Supp. 2d

1301, 1309 (N.D. Ga. 2012) (quoting Smith Serv. Oil Co. v. Parker, 250 Ga. App.

270, 272, 549 S.E.2d 485, 487 (2001) (alteration omitted)). “The concept of unjust

enrichment in law is premised upon the principle that a party cannot induce, accept,

or encourage another to furnish or render something of value to such party and avoid

payment for the value received.” Reidling v. Holcomb, 225 Ga. App. 229, 232, 483

S.E. 2d 624, 626 (1997). “[T]he essential elements of [unjust enrichment] are that

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(1) a benefit has been conferred, (2) compensation has not been given for receipt of

the benefit, and (3) the failure to so compensate would be unjust.” Clark, 914 F.

Supp. 2d at 1309.

Here, as set forth above, no benefit has been conferred by Plaintiffs upon

Defendants, as such contrivances are illusory and of no value. The Defendants

provided the benefits, not the other way around. Nor is anything unjust about an

“agree[ment] to collaborate” that results in a gift of more than one million dollars

for worthy recipients. (Compl. ¶¶ 9, 18). There are no actionable claims here and it

would be unjust to require any compensation to Plaintiffs from the Defendants under

the circumstances presented.

G. Constructive Trust (Count 8)

Georgia law defines a constructive trust as a trust implied whenever the

circumstances are such that the person holding legal title to property, either from

fraud or otherwise, cannot enjoy the beneficial interests in the property without

violating some established principle of equity. O.C.G.A. § 3-12-132. Plaintiffs have

not shown any circumstance that would justify a constructive trust. Troutman v.

Troutman, 297 Ga. App. 62, 62-63, 676 S.E. 2d 787, 789 (2009). There is no

evidence that Defendants defrauded anyone in this case. Instead, Plaintiffs allege

Pastor Franklin’s ministry provided gifts totaling $1.2 million for the benefit of

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Holocaust survivors in Jerusalem. (Compl. ¶ 18). On the other hand, the question

of whether Plaintiffs properly applied the gifts and/or whether the gifts have been

received by the intended beneficiaries remains to be seen.

H. Violation of Georgia Deceptive Trade Practices Act (Count 9)

Plaintiff CUI’s claim10 under Georgia’s Uniform Deceptive Trade Practices

Act (“UDTPA”) and Georgia’s False Advertising Act (“FAA”) fails, first and

foremost, because Plaintiff CUI seeks an injunction to remedy past conduct, not

future conduct. “Injunctive relief is the only remedy permitted by the GDTPA.” See,

e.g., Catrett v. Landmark Dodge, Inc., 253 Ga. App. 639, 644, 560 S.E. 2d 101, 106

(2002); Dombrowsky v. Patricia, No. 1:11-CV-3048-MHS, 2012 WL 12873617, at

*4 (N.D. Ga. July 31, 2012) (“As with UDTPA, the FAA provides a private right of

action only for injunctive relief[.]”) Injunctive relief is “to prevent, prohibit or

protect from future wrongs and does not afford a remedy for what is past.” Catrett,

253 Ga. App. at 644, 560 S.E. 2d at 106 (emphasis added). Here, Plaintiff CUI does

not allege it will suffer any future harm absent an injunction. Rather, Plaintiff CUI

only alleges past deception and past harm. (See, e.g., Complaint ¶ 66 (“Defendants

sought and received…”); ¶ 67 (“Defendants further represented…”); ¶ 68 (“Church

10
Plaintiff Evans does not appear to join in Count 9. If he does, Count 9 should be
dismissed with prejudice as to Plaintiff Evans because he does not allege he
sustained damages.
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United sustained injury and/or damages…”).) Thus, Count 9 should be dismissed.

See, e.g., Terrill v. Electrolux Home Prod., Inc., 753 F. Supp. 2d 1272, 1291 (S.D.

Ga. 2010) (granting motion to dismiss UDTPA claim because “Plaintiffs do not

allege that they will be damaged in the future absent an injunction… much less allege

how they will be damaged.”).

Count 9 has other fatal flaws too. Like other counts, Count 9 fails to plausibly

allege a falsity. Count 9 alleges that Pastor Franklin’s ministry falsely represented

to Plaintiff CUI that the ministry would “remit all charitable funds.” (Compl. ¶ 67).

Critically, Plaintiffs do not allege whether Pastor Franklin’s ministry represented it

would provide a sum certain, the net funds raised, or the gross funds raised. Given

that, Plaintiffs have not even alleged a falsehood; indeed, Plaintiffs have not claimed

that Pastor Franklin’s ministry failed to remit donations from net funds. Thus,

Plaintiffs do not plausibly allege that the alleged representation about remitting “all

charitable funds” was false. The only other alleged deceptions in Count 9 concern

representations made to the “general public” and/or in the course of “soliciting

charitable funds” from the public about ownership of “the Property” and the donor

wall—as stated on page 16, Plaintiffs do not have standing to sue about such

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statements.11 (Compl. ¶ 66). For the foregoing reasons, Pastor Franklin and Free

Chapel are entitled to costs and attorney’s fees in connection with litigating Count

9. O.C.G.A. § 10-1-373(b)(1).12

I. Injunctive Relief (Count 10)

Count 10 fails because Plaintiffs’ allegations fall far short of justifying the

“extraordinary remedy” of a temporary restraining order, interlocutory injunction,

or permanent injunction. Jansen-Nichols v. Colonial Pipeline Co., 295 Ga. 786, 787,

764 S.E.2d 361, 362 (2014); TMX Fin. Holdings, Inc. v. Drummond Fin. Servs.,

LLC, 300 Ga. 835, 836–37, 797 S.E.2d 842, 844 (2017) (test for interlocutory

injunction is “(1) whether there exists a substantial threat that a moving party will

suffer irreparable injury if the injunction is not granted; (2) whether the threatened

injury to the moving party outweighs the threat and harm that the injunction may do

to the party being enjoined; (3) whether there is a substantial likelihood that the

moving party will prevail on the merits at trial; and (4) whether granting the

interlocutory injunction will not disserve the public interest.”); City of Atlanta v. S.

11
FAA explicitly concerns false advertisements to “induce the public.” Plaintiffs
have not alleged they are members of “the public” for purposes of Count 9, and thus
Plaintiffs do not have standing to raise a FAA claim.
12
This Count is also barred by Georgia’s charitable immunity statute, O.C.G.A.
§ 51-1-20. See, e.g., Culpepper, 254 Ga. App. at 570-71; see also Dyches, 212 Ga.
App. at 215-6.
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States Police Benevolent Ass’n of Ga., 276 Ga. App. 446, 458, 623 S.E.2d 557, 567

(2005) (“Entry of a permanent injunction is appropriate in clear and urgent cases

where there is a vital necessity to prevent a party from being damaged and left

without an adequate remedy at law.”).

Count 10 should be dismissed as to Plaintiff CUI because Count 10 does not

mention Plaintiff CUI, let alone allege Plaintiff CUI has suffered any harm

warranting injunctive relief. As such, Plaintiff CUI does not have standing to seek

an injunction as a constitutional matter. Even if it did, Count 10’s allegations do not

meet the test for an interlocutory injunction, let alone a permanent injunction.

Regarding Plaintiff Evans, Count 10 is deficient because he does not have

standing to seek an injunction based on conclusory fears about “harm” to his

“reputation in the Christian and Jewish communities.” (Compl. ¶71). Such an

allegation is at most “conjectural and hypothetical,” not “concrete and

particularized” and “actual or imminent,” as is required. See, e.g., In re Haney, No.

A20A0472, 2020 WL 3396355, at *3 (Ga. Ct. App. June 19, 2020). Indeed, Plaintiff

Evans does not allege with any specificity what sort of actual, tangible harm his

reputation will suffer. See, e.g., id. (finding allegations that a trial court order would

be a “‘death order’ to [movant’s] career” and “have an adverse impact on [movant’s]

job, career and certification,” were “generic, speculative statements” that “fall well

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short of what is required to establish standing” to sue for injunctive relief) (emphasis

added).

Even if Plaintiff Evans’s generic allegations of potential harm were sufficient

to establish standing, they are not sufficient to show he is entitled to a temporary

restraining order, preliminary injunction, and/or permanent injunction. The primary

injury Plaintiff Evans apparently hopes to avoid is Pastor Franklin’s ministry

“misappropriating Evans’ name.” (Compl. ¶¶ 77, 78). But as stated on pages 23-26,

the Complaint provides only thin, vague, and conclusory allegations about

misappropriation. None of those allegations show Plaintiff Evans is likely to suffer

irreparable harm before a decision on the merits can be rendered. See e.g., 11A

Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure § 2948.1

(3d ed. 2008) (identifying likelihood of irreparable harm “before a decision on the

merits can be rendered” as “[p]erhaps the single most important prerequisite for the

issuance of a preliminary injunction”).

Additionally, as discussed above, neither Plaintiff Evans nor Plaintiff CUI are

“substantially likely to succeed on the merits” of Counts 1 through 9. At most,

Plaintiffs alleged the parties “agreed to collaborate” without alleging the parties

came to a meeting of the minds on a litany of essential terms, among the other

deficiencies addressed herein. Plaintiffs also have an “adequate remedy at law”

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through the breach of contract, fraud, misappropriation, and other claims. To obtain

a remedy at law, Plaintiffs must first raise plausible allegations sufficient to state a

claim for relief, which their Complaint fails to do.

CONCLUSION

What would otherwise be considered a very generous act has turned into a

dispute initiated by Plaintiffs without any basis in the law or fact. Pastor Franklin

said his ministry would raise monies for the project, and it did so. While he denies

agreeing to provide all gross funds raised through the fundraising campaign, Pastor

Franklin’s ministry provided over $1 million in donations from net funds remaining

after the deduction of the costs for the campaign. Hopefully, Plaintiffs have properly

used those funds. Defendants have yet to receive any accounting from Plaintiffs to

this effect, nor have they been able to verify that any Holocaust survivor currently

resides in the constructed apartments.

Pastor Franklin volunteered to raise funds for the Holocaust survivors as part

of his own ministry because doing so is consistent with the number one goal of his

ministry: to spread the Good News of the Gospel of Jesus Christ and to assist those

in need wherever possible consistent with that mission. Pastor Franklin makes no

apologies for supporting Holocaust survivors with over $1 million in gifts and

charitable donations from the donors of his televangelistic ministry. Absent proof

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of malice and intent to inflict harm, he and his Church are protected by immunity

for such acts of Christian kindness.

Regardless of Plaintiffs’ semantics, there was no enforceable contract here

because, even taking the Plaintiffs’ allegations as true, at most the parties orally

agreed about a real estate project not to be completed within one year. There

certainly could be no meeting of the minds to provide Plaintiffs with indefinite

funding for the development of housing for the survivors after it was completed and

“ready for occupancy,” (Compl. ¶ 13), nor are the specific allegations of fraud in

Plaintiffs’ Complaint sufficient to withstand this Motion to Dismiss for the reasons

stated.

Since the claim to the monies raised by Pastor Franklin’s television ministry

is predicated upon the claimed fraud torts, and because those claims are deficient as

a matter of law, and because all other claims in the Complaint emanate from the

same generalized and non-specific allegations, Defendants respectfully submit that

Plaintiffs’ Complaint be dismissed for failure to state a claim and for failure to allege

a fraud claim with the specificity required.

For the foregoing reasons, Pastor Franklin and the Free Chapel respectfully

request that this Court grant their motion to dismiss the claims against them in their

entirety and dismiss them from this action with prejudice.

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Respectfully Submitted,

s/ Richard W. Hendrix
Richard W. Hendrix
Georgia Bar No. 346750
David H. Bouchard
Georgia Bar No. 712859
Co-Counsel for Defendants

FINCH McCRANIE, LLP

225 Peachtree Street, N.E.
1700 South Tower
Atlanta, GA 30303
404-658-9070; Fax 404-688-0649
rhendrix@finchmccranie.com
david@finchmccranie.com

s/ J. Matthew Anthony
J. Matthew Anthony
Texas Bar No. 01270000
Georgia Bar No. 514530
Pro Hac Vice for Defendants

Anthony Kennedy
3400 William D. Tate Avenue
Grapevine, TX 76051
817-912-0901; Fax 817-912-3605
matt@amlawteam.com

s/ Andrew B. Brettler
Andrew B. Brettler
California Bar No. 262928
Pro Hac Vice for Defendants

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Lavely & Singer, P.C.

2049 Century Park East
Suite 2400
Los Angeles, CA 90067-2906
310-556-3501; Fax 310-556-3615
abrettler@lavelysinger.com

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CERTIFICATE OF SERVICE

This is to certify that I have this day served a copy of the foregoing filing into

the District’s ECF System, which will automatically forward a copy to counsel of

record in this matter.

Dated: This 4th day of September, 2020.

s/ Richard W. Hendrix
Richard W. Hendrix
Georgia Bar No. 346750
David H. Bouchard
Georgia Bar No. 712859
Co-Counsel for Defendants

FINCH McCRANIE, LLP

225 Peachtree Street, NE
1700 South Tower
Atlanta, GA 30303
404-658-9070; Fax 404-688-0649
rhendrix@finchmccranie.com
david@finchmccranie.com

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