Nicely Done, Judge Brister

Good lawyering is something all attorneys can appreciate, but in some instances it should be possible for lay persons to admire it as well. In this post, I would like to lay out, as best as I can, a particularly outstanding example of good lawyering in the Episcopal Church property litigation cases -- in the hope that some of the regular pewsters might come to recognize it for such, as well.

Let me set the background. The Episcopal Diocese of Fort Worth became a member of the Episcopal Church in the United States of America effective January 1, 1983. A group of parishes and their clergy who had been part of the Episcopal Diocese of Dallas determined, with the consent of that Diocese, to form their own ecclesiastical unit, with their own bishop. The necessary conventions were held, the votes taken, and on February 28, 1983 a non-profit corporation was organized under Texas law, to become the Corporation of the Episcopal Diocese of Fort Worth.  

It was agreed by the members of the new Diocese that the Corporation would hold title to the real property of all of its parishes and missions. Appropriate conveyances were executed and duly recorded to bring this about. Thereafter, every time a new mission or parish in the Diocese acquired any real property for its operations, the Corporation took the title in its legal name, and held it in trust for the particular mission or parish.

In November 2008, the convention of the Diocese of Fort Worth met and took a decisive vote: the overwhelming majority voted to de-accede from (withdraw their consent to) the Constitution and Canons of ECUSA. Since no Diocese can be a member of ECUSA without having such an accession clause in its own constitution, that change by the Episcopal Diocese of Fort Worth had the effect of making it no longer a member of ECUSA. Instead, the Diocese took temporary shelter under the administrative structure of the Anglican Province of the Southern Cone. In June 2009, the Episcopal Diocese of Fort Worth was instrumental in forming the Anglican Church in North America, and became a member diocese of that organization, by acceding to its Constitution and Canons.

Throughout this entire period, from 2008 until the present, the Diocese of Fort Worth remained a diocese, and its Bishop remained the Right Reverend Jack L. Iker. As the head of the diocese, Bishop Iker also served as the Chairman of the Board of Trustees of the diocesan Corporation. The other Trustees of the Corporation were elected by the diocesan convention. Since the Corporation was the legal agent of the Diocese, and was governed by officials chosen by the Diocese, it followed the Diocese itself in its peregrinations from ECUSA to ACNA.

When the diocesan convention voted in 2008 to change its Constitution and canons, a minority of parishes decided they wanted to remain affiliated with ECUSA. To do so, however, they first had to form a diocese of their own. In February 2009, these parishes and missions came together in a “special convention” at which they adopted a constitution and bylaws based on the old ones that had governed before the withdrawal. They agreed upon a provisional bishop to lead them, and without going through any of the requisite formalities of admission, the Presiding Bishop and President of the House of Deputies welcomed the new group, gave it recognition as a diocese of ECUSA, and allowed its representatives seat and voice at the very next General Convention that same summer. 

To distinguish it from the real article, which retains the title “the Episcopal Diocese of Fort Worth”, I shall call this second organization “the Ersatz Diocese of Fort Worth” -- using the German word Ersatz (“replacement, substitute”) to signal that it is not the genuine article. Although the leadership of the Episcopal Church (USA) may treat it as one of its member Dioceses, it has done so only to enable it to become a plaintiff in court as soon as possible. As I explain below, however, the judges are still out on whether or not the maneuvers of the ersatz diocese and its sponsor had any real effect under Texas law.

“What maneuvers?” you ask. Begin with the title to the properties of the dissenting parishes and missions, which at the time of the vote to disaffiliate, were still held (in trust for them) by the Corporation of the Episcopal Diocese of Fort Worth. Bishop Iker allowed the Corporation to transfer legal title to the individual entities, where there was a corporate body to receive it, and there was no debt owed to the Diocese. Before he could complete the transfers of all such properties, however, he was served with an extraordinary complaint filed by ECUSA, the ersatz diocese and its provisional bishop.

The complaint, in essence, charged that because Bishop Iker and his Diocese had voted to withdraw from ECUSA in the manner described, he and his other Trustees were no longer “qualified” to sit on the Board of Trustees of the Corporation. As a result, Bishop Gulick, the provisional bishop of the ersatz diocese, and five new trustees which he had decided to appoint, claimed that they would now control the Corporation, and consequently all of the property of the Episcopal Diocese of Fort Worth, in addition to the properties of just the dissenting parishes and missions -- thank you very much.

ECUSA itself (through its Presiding Bishop, acting without any legal authority) joined in the complaint, and alleged that all the property of the Corporation, held in trust for the individual parishes and missions, was further subject to a trust that such property could be used only for Episcopal Church (USA) purposes. Never mind that there was no writing signed by the Corporation expressing the terms of any such further trust. The lawsuit alleged that the trust was implicit in the governing documents of ECUSA, to which all member dioceses were forever and irrevocably bound. While individuals might signal their disaffiliation and withdraw from the Church, entities like Dioceses, and the corporations which they controlled, were forever joined to ECUSA at the hip, and no action by local officials (or national officials, for that matter), could ever dissolve the institutional ties between the Church and its member entities.

To use a by-now familiar word in this context, ECUSA claimed it was a “hierarchical” church, like the Roman Catholic Church, only without a pope. As such, its structures were forever locked into an indissoluble union, it claimed, that no mere State courts or State laws could affect in any way, shape or form, once it had come into being. If you were an entity that joined ECUSA, then once so joined, you could never, ever again leave.

The amazing thing was that ECUSA and its ersatz diocese persuaded a Texas judge to buy into their thinking, and to grant them summary judgment against Bishop Iker and his Diocese on all their outlandish claims. Sometimes a concept is so topsy-turvy that it really is hard to tell which side belongs up. It is difficult not to conclude that District Judge Chupp (brand-new on the bench, when the case started) simply threw up his hands, realized he had to make a ruling of some kind so there could be an appeal, and so signed the version of the order ECUSA’s attorneys presented to him -- even striking out, in the process, language which might have drawn attention away from the stark conclusions of law to which ECUSA claimed it was entitled.

Bishop Iker and his attorneys appealed the judge’s order directly to the Texas Supreme Court. This was a move which took the ersatz diocese and ECUSA by surprise, and is the first instance of the good lawyering I am going to explain in this article. Among the outstanding Texas barristers employed by Bishop Iker and his Corporation was Scott A. Brister, Esq., of the law firm of Andrews Kurth in Austin, who had served on the Texas bench for twenty years -- the last six on the Texas Supreme Court -- before resuming private practice. Under his leadership and advocacy, his clients convinced the present justices of that Court to bypass the Court of Appeals and decide the merits of the dispute at the highest level.

The Texas Supreme Court noted jurisdiction in the Fort Worth appeal (i.e., it agreed to hear the case) on January 6 of this year. The Court rarely grants such direct appeals, and attorneys in Texas took notice of the case. And now, please pay close attention, because the story behind the issuance of that order shows how the lawyering on Bishop Iker’s side has been truly outstanding.

Among the many cases presented to the Texas Supreme Court for decision the previous term was one that was decided without oral argument toward its very end, on June 24, 2011. With one justice not participating, the Court issued what is called a per curiam decision (not signed by any justice as author, but issued by the court as a body) in the case of Ganim v. Alattar, a dispute over the title to property claimed by two men who had once agreed to be partners.

The per curiam opinion sets out the facts of the case succinctly. At bottom, Ganim and Alattar were two former friends who had verbally agreed to invest in a 3,800-acre property together, through a partnership which they would form. Alattar signed the purchase contract for the property as “Trustee” of an unspecified trust. Although they each subsequently signed a partnership agreement, they then had a disagreement over what it said, and the partnership fell apart. Meanwhile, Alattar completed the purchase of the property, and took title as “Trustee” of an unspecified trust. Ganim sued to place his name on title, and claimed that Alattar held the property in trust for their still unresolved partnership.

A jury believed Ganim, and found that the two intended to buy the land jointly. The Texas Court of Appeals held that because the only agreement between them to that effect was an alleged verbal one (the written partnership agreement did not refer specifically to the land), it could not be enforced due to the Texas Statute of Frauds. That law requires that before courts can give them any legal effect, all agreements to purchase or hold any interest in real property be in writing, and signed by the parties to be affected by the transfer.

The Texas Supreme Court, as noted, issued its opinion unsigned, and without holding any oral argument (as is its prerogative). It reversed the Court of Appeals and reinstated the jury’s verdict, because it reasoned that the Statute of Frauds applied only to contracts to purchase land, and not to verbal agreements to form a partnership to buy land. In this case, it pointed out, the actual purchase agreement between the seller and Alattar was in writing. The agreement as to how Alattar was eventually to hold title was not, but the Statute did not apply to such agreements between prospective partners. (In Texas, as elsewhere, a partnership may be based on a verbal agreement only.)

In effect, the Court’s decision allowed anyone to plead around (avoid) the Statute of Frauds in any case involving the acquisition of title to real property by alleging a verbal agreement to hold title to the land jointly, or in trust, or in some fashion other than the actual way in which title was acquired on paper. Do you see why it generated some concern for Bishop Iker’s attorneys, who just two months earlier (on May 3, 2011) had filed their notice of a direct appeal of the judgment in their case with the Texas Supreme Court?

If Ganim could sue to put his name on real property as a joint owner with Alattar, without any writing to that effect signed by Alattar or the seller, without having put up any money  towards the purchase, and waiting until the sale to Alattar as “Trustee” had completed before making any claim that Alattar was really acting as the trustee for their alleged verbal partnership, then where was the limit on such claims? And if you were the attorney for a party who had just appealed to that same Court a judgment awarding complete title to a stranger (ECUSA), who likewise had no agreement in writing, no express written trust in any of the property at stake, and who had contributed no money whatsoever to the property’s acquisition, would you not be concerned about such a per curiam decision? 

Indeed you would -- and that is why, acting efficiently, attorney Scott Brister filed on behalf of his clients Bishop Iker et al. a most unusual amicus brief in support of Alattar’s petition for rehearing (“amicus” is Latin for “friend”; an amicus brief is one submitted in support of a particular issue or point, by one who is not a party to the case, acting as a “friend” to the Court).

The petition for rehearing had been filed with the Court (after receiving an extension of time) on July 26, 2011. Judge Brister had his amicus brief on file just three days later -- you may read it at this link.

The brief is a masterpiece of direct and clear argument. In three short sections, Judge Brister showed his former colleagues on the Court just where they had gone astray: they had overlooked a 1993 Texas statute which created a statutory presumption that property acquired in the name of one who is a partner is that partner’s own personal property, and is not partnership property unless partnership funds were used to acquire it, and the deed refers to the purchaser as the partner of that partnership. Ganim could show neither in his favor, and so the statute created a presumption against his allegations which no verbal evidence could overcome. 

Judge Brister also pointed out that the Supreme Court had relied on two opinions which neglected to take account of a 1943 amendment to the Texas Statute of Frauds, and which required that any express trust in real property be in writing, signed by person(s)  placing the property into trust.  

The amicus brief did not shy away from pointing out the problems which the Court’s decision in Ganim v. Alattar might raise for the Episcopal Diocese of Fort Worth in its appeal:

… the opinion’s suggestion that a claimant to property can plead around the statute of frauds and the Texas Trust Code by asserting nothing but an oral agreement for joint acquisition of land. Can a third party — who has no title, no signed writing, and no money at risk — become owner of real estate simply by convincing a jury that an oral promise of joint ownership was made many years ago? If that is Texas law, then claimants from Rome, Canterbury, or anywhere else might ask a jury to award interests in Texas church properties based on nothing but oral testimony about “understandings” from long ago. 

In other words, the predecessors in title to ECUSA’s churches, such as the Church of England acting through the Archbishop of Canterbury, might use the Texas doctrine to claim an ancient trust on all ECUSA properties which originated when it planted the first churches in the American colonies. Likewise, the Roman Catholic Church, through its Pope, might assert a trust of even more ancient origins in those same properties which came into being when the Church of England overthrew Rome’s jurisdiction over her.

All of this went on while ECUSA and its ersatz dioceses were preparing their responses to the jurisdictional statement filed in support of Bishop Iker’s appeal. There is no hint that ECUSA or its attorneys paid any attention to what was happening on Alattar’s petition for rehearing. Ganim filed a response on August 30, and Alattar filed a reply on September 12. Thereafter the matter was submitted.

Now note carefully what happened next. On January 6, 2012 (as mentioned earlier), the Texas Supreme Court entered its order noting probable jurisdiction in Bishop Iker’s appeal.  On January 20, just two weeks later, the Court entered an order granting Alattar’s petition to rehear the case. And on March 30, the Court entered a final order withdrawing its previous opinion in the case, and dismissing Ganim’s original petition for review as “improvidently granted.” 

I hope I have explained the sequence of events clearly enough so that you can appreciate the outstandingly good lawyering that went on here. Having guided his clients to a direct appeal with the Texas Supreme Court -- a move that will save them untold time and legal fees -- the attorney notices an obscure and relatively minor per curiam opinion issue just a few weeks later which presents a potential problem for the Court’s disposition of the issues presented in his case. The two cases are not identical, but they are close enough to be troubling for the attorney. 

As a means both of disposing of the potential problems, and also of calling the Court’s attention in a polite way to the issues which he plans to bring before the Court in his own case that he was asking them to review, the attorney promptly files an amicus brief which shows why the per curiam opinion is wrong, and should not have been issued. But in the process, he gains his former colleagues’ ear as to the reasons why they should agree to review the case he has brought to them. 

This bit of deft legal footwork earned the following expression of admiration from one of Judge Brister’s appellate colleagues who maintains a blog about the doings of the Texas Supreme Court:

The amicus strategy here is also instructive. Although many groups have some interest in how this rule applies to partnerships or trusts, this amicus brief had the secondary (or perhaps primary?) goal of highlighting the importance of the diocese’s pending direct appeal. Nicely done. 

Yes, Judge Brister -- nicely done.