Thursday, April 28, 2011

How Not to Take a Christian to Court

A new lawsuit involving the parish of St. Francis on the Hill in El Paso, Texas was filed on Tuesday, April 26 in the local district court (34th Judicial District). The suit marks another low point in the desultory annals of litigation brought by dioceses of the Episcopal Church (USA) against their former parishes, vestries and rectors. Coming literally on the heels of a final judgment entered in that same court on March 11, which awarded all of the Anglican parish's real and personal property to the Diocese of Rio Grande, the new lawsuit was filed even though that prior judgment has since been appealed to the Eighth Court of Appeals in El Paso.

(The prior proceedings in this tangled lawsuit were well described by the Rev. George Conger in this article. Note that in the new lawsuit, the roles are reversed: the former plaintiffs are the new defendants, and vice versa.)

What is particularly despicable about this latest lawsuit is not just that it seeks to embroil the parties who are appealing the trial court's judgment in brand-new litigation pending that appeal, but it also seeks punitive damages (in addition to other relief) against them. The complaint asks for
exemplary damages in an amount up to the greater of the following: (a) $200,000; or (b) two times the amount of economic damages plus the amount of non-economic damages that do not exceed $750,000
from each of the defendants: the parish of St. Francis itself (a Texas non-profit corporation), its rector, Dr. Felix Orji (recently elected a bishop in CANA), and the three individual trustees of a related non-profit corporation, called the "Foundation for Los Robles Church."

And just what is this egregious conduct that is the occasion for an award of punitive damages? Why those named defendants, you see, had the temerity to continue to operate as a church during the earlier pending lawsuit, and in doing so they collected money, transfered it to various accounts, and otherwise made the money and property no longer available for turnover now to the plaintiffs in accordance with the terms of the March 11 judgment -- which is being appealed.

The very idea!

Perhaps the pleader has even more dastardly conduct in mind, but if so, he does not spell it out. Here are his so-called "factual allegations", taken word-for-word from the new complaint:
17. Some of the Property [ordered to be transferred by the March 2011 judgment] was transferred by St. Francis to Los Robles in the past. Upon information and belief, Los Robles was formed by the Individual Defendants and others associated with St. Francis.

18. Some of the Property has been otherwise dissipated, diverted or expended by St. Francis and the Individual Defendants in ways contrary to applicable canon and other laws, and in contravention of the rights and interest of Plaintiffs.

19. Despite demand, Defendants have refused to return the Property to Plaintiffs. In addition, monies made payable to St. Francis in October 28, 2008 have been diverted and transferred by St. Francis and the Individual Defendants to Los Robles in contravention of rights of Plaintiffs.
And that's it -- that is it. The complaint never gets any more "factual" than that. The rest of its ten-page length, and its 54 repetitive paragraphs, are used for legal boilerplate that charges the parish of St. Francis, its rector, and the Los Robles Foundation trustees with every tort or other actionable claim a first-year law student might be able to think of: (1) conversion; (2) "money had and received"; (3) fraudulent transfers for inadequate value, resulting in St. Francis' "insolvency"; (4) breach of "fiduciary duty" (never mind that the plaintiffs in a law suit are generally not in any kind of fiduciary relationship with the defendants while the lawsuit is going on); (5) breach of the "duty of good faith and fair dealing" (such a duty can arise only out of a contract between two parties, and there was no "contract" between these plaintiffs and these defendants); (6) constructive fraud (i.e., not real fraud, but again arising out of a [nonexistent] "duty"); (7) civil conspiracy (which in California, at least, is not even a separate cause of action, but only a theory of joint liability); and (8) constructive trust (i.e., St. Francis and its rector -- a non-profit entity and its leader -- have somehow unjustly been "enriched" at the plaintiffs' expense).

While such theories of liability are all covered in the first year of most law schools, the case is rare in the extreme in which all of them can be said to apply to the facts at one and the same time. (In nearly forty years of practice, for example, I have never encountered one.) Parties are entitled to plead alternative theories when they are uncertain as to the one on which they believe they might prevail ("The defendant stole the plaintiff's watch, or picked it up where it had dropped in the street, and walked off with it"), but the latest El Paso complaint, with its puffed-up allegations of first-year torts and "civil conspiracy", ought to serve as an example in law schools of how not to put such first-year knowledge to use.

It would be more humorous if it were not so serious, however. Real, hard-earned money is going to have to be devoted to defending against this nonsense. And I note from the complaint that the new Bishop of Rio Grande, the Rt. Rev. Dr. Michael L. Vono, does not even allow his name to appear in the pleading (he is right to be ashamed to do so, if he is in fact so ashamed): throughout the pleading, he is described solely by his title, as in this paragraph:
4. The Bishop of the Diocese of the Rio Grande is a natural person residing in Albuquerque, New Mexico. The Bishop is the ecclesiastical authority of the Diocese.
Something has come seriously unhinged in the Diocese of Rio Grande, and I hope it has nothing to do with the arrival of a new sheriff in town. In researching this article, I came across this story about the earlier lawsuit, while it was pending in 2010:
Two years ago, the parish of St. Francis voted to leave the Episcopal Church, but said it intended to remain right where it was — on the hill overlooking El Paso’s Westside. The parish also changed its name, from St. Francis Episcopal Church to St. Francis Anglican.

And to head off efforts by the denomination to evict them, members took the unusual step of suing the national church and the regional diocese, the Diocese of the Rio Grande, based in Albuquerque, N.M.

Since then St. Francis and the Episcopal Church have been battling it out in the 210th Judicial Court before Judge Gonzalo Garcia.

On Feb. 10, St. Francis Church lost the first round in its legal fight to stay in the church complex on Los Robles Drive when Garcia ruled in favor of the Episcopal denomination and the Rio Grande Diocese.

But St. Francis is in no immediate danger of eviction. The two sides are working out an agreement that would let the St. Francis parish remain in the church property, at least until the conclusion of an appeal to the Texas 8th Circuit Court of Appeals in El Paso.

“We are certainly not going to tell them to move out,” said Canon Colin Kelly, who serves as the president of the Standing Committee of the diocese. The diocese is searching for a new bishop, and the committee makes administrative decisions in the meantime. The diocese expects to elect a new bishop April 24 at a gathering at the cathedral in Albuquerque, N.M.

“At some point we will want to have occupancy, but we are sensitive to their feelings and thoughts,” Kelly said.
"Sensitive to their feelings and thoughts"? Does suing individuals for hundreds of thousands of dollars in punitive damages constitute being "sensitive to them"? It does not -- not in the sense in which most people understand that word. So what happened between early 2010 and early 2011? After all, the Rev. Canon Dr. Colin Kelly is still on the diocesan Standing Committee.

Christians fighting Christians in the secular courts -- I have to say -- set perhaps the worst contemporary example of their faith for the secular culture in which we live. It is bad enough that the bulk of those Christians fighting in the courts today call themselves -- or used to call themselves -- Episcopalians. But when Episcopalians go after the garden-variety, day-to-day acts of practicing the faith by operating a church and paying its bills, and try to make those the equivalent of Bernie Madoff's fraud and deception, we have hit a new low. The Dennis Canon, and the Church which spawned it, are now engaged in what I would call a Satanic embrace.

Whether Episcopal or Anglican, please pray for your Church. At this rate, it may only get worse before it gets better.


  1. Thank you. I pray that faithful Christians' continued shirking and squirming from that satanic embrace will eventually lead to (financial) bloodletting, fatigue and atrophy of those infernal arms. The ECUSA must eventually answer to a higher authority than state appeals courts.

  2. And they'll know we are Christians by our love, by our love....

    How beyond sad, just how demonic!

    Rdr. James Morgan
    Former Episcopalian

  3. NW Bob keeps watching all these law suits. Even where they are supposed to be decided by neutral principals, the decisions keep going against the owners who bought and paid for the property. I have to say that I am losing faith in and respect for those who ply the legal trade. Those with money can file suit after suit until those with little resources have to throw in the towel even if they are right. What is the remedy for this?

    NW Bob

  4. What should we do, Northwest Bob? Shakespeare had an idea in Henry VI, Part 2, Act IV, Scene 2. (; you know which quote to which I'm referring.)

    Of course I would not suggest the breaking of the Sixth Commandment (I'm a retired [recovering?] lawyer myself). I would observe, however, that the most important fact I learned while practicing law was that for many attorneys, Law does not equal Justice.

  5. Thankfully that evil Dennis Canon has been thrown down and thwarted in the state of South Carolina.

    I wonder how these sort of lawsuits get anywhere in our court system when there are so many other lawsuits deserving attention. Could not the time of judges and attorney be better used ??

    SC Blu Cat Lady

  6. What happened in California? I got an e-mail from the LA Diocese regarding a ruling.