Episcopal Parties file Response to Defendants’ Motion for Partial Summary Judgment

Episcopal Parties file Response to Defendants’ Motion for Partial Summary Judgment

On Monday, December 22, 2014, Plaintiffs The Episcopal Church and the Local Episcopal Parties and Congregations filed their Response to the breakaway Defendants’ motion for partial summary judgment in the 141st Civil District Court of Tarrant County, the Honorable Judge John P. Chupp presiding. Read the Response to Defendants’ Second Motion for Partial Summary Judgment – PDF The Rt. Rev. Rayford B. High, Jr., bishop of the diocese and one of the named plaintiffs in the case, expressed his confidence that the legal position of The Episcopal Church, along with its continuing Episcopal Diocese of Fort Worth and all 55 of its congregations, will prevail in this legal dispute. “Our summary judgment filings clearly reflect the consistent investment of The Episcopal Church in this diocese and its congregations. At this incarnational season, we all are gratified that the mission and ministry of The Episcopal Church continues to welcome all those seeking God’s grace as we prepare to start our 33rd year as The Episcopal Church in the 24 counties of this diocese.” The Episcopal Parties’ Response demonstrates again why they prevail under the indisputable facts and law of the case. For example, the motion shows: Simple Solution

  • a. Defendants judicially admit that the Corporation holds all property in trust for the Diocese and its Congregations.
  • b. The Texas Supreme Court has already ruled that dioceses and congregations are “subordinate Episcopal affiliate[s]” of the “conclusively … hierarchical” Episcopal Church.
  • c. Defendants judicially admit that when “the property dispute’s resolution turned, under neutral principles of Texas law, on the local church body’s identity—an ecclesiastical matter—the court deferred to the national denomination’s understanding of the church’s identity. [This], the Texas Supreme Court held [in Masterson], ‘remains the appropriate method for Texas courts.’”
  • d. The Church recognizes only Plaintiffs as the Diocese and Congregations and their leaders.
  • e. Conclusion: Only Plaintiffs are entitled to the trust in favor of the Diocese and Congregations.

The Episcopal Parties’ Response further demonstrates that: “Defendants’ motion for partial summary judgment relies on misstatements of the law and record that are so unhinged from reality that they constitute fantasy,” including:

Defendants’ Claim:

“The Corporation has never had any affiliation or relationship to TEC [The Episcopal Church].”


  • The Corporation’s founding documents required that its affairs “shall be conducted in conformity with the Constitution and Canons of the Episcopal Church in the United States of America,” which “control” over its bylaws.
  • The Corporation represented to the IRS for over 20 years that it “is a subordinate unit of [the] Protestant Episcopal Church in the United States of America.”
  • Defendants admitted under oath that these representations were “truthful” and would be “illegal” if false.
  • The Corporation reaffirmed these representations to Tarrant County in 2007 as “full and complete.”
  • In 1994, the Corporation told another Fort Worth court it holds property for “Episcopalian congregation[s]” under The Episcopal Church’s “national canons.”


Defendants’ Claim:

“There is no such thing as a ‘contractual trust’ in Texas.”


  • Fort Worth Court of Appeals: the “attempted revocation” of “a trust that is created by contract and based on a valuable consideration” is “wholly ineffective.”
  • Vernon’s Texas Codes Annotated, Property Code § 112.051 (2013), cmt. 3: “Contractual trusts.”
  • Johanson’s Texas Estates Code Annotated § 112.051: the presumption of revocability “does not apply to trust[s] created by agreement and supported by consideration; such a trust is irrevocable even if it does not expressly so state.”
  • Restatement (Third) of Trusts: “Where consideration is involved in the creation of a trust, the rules governing transfers for value and contracts are applicable.”
  • Bogert’s The Law of Trusts and Trustees § 998 n.8 (2014): “Section 41 of the Texas Trust Act, providing that every trust is revocable unless expressly made irrevocable, [does] not apply to a contractual trust based on valuable consideration.”
  • Professor Beyer, author, Texas Trust Law: “A trust supported by consideration is a contractual trust, which is irrevocable even without an express statement of irrevocability in the instrument.”


Defendants’ Claim:

“[C]ourts must exercise jurisdiction to decide who holds a particular [ecclesiastical] office when property ownership is contested.”

Truth: Texas Supreme Court (2013):

  • Courts are “constitutionally required” to “accept” the Church’s choice of officers “as binding” even where this deference “effectively determine[s] the property rights in question.”


Defendants’ Claim:

The property “went to the Corporation without any stated conditions.”

Truth: The property was

  • “acquired for the use of the Episcopal Church in the Diocese of Dallas,”
  • transferred to the Corporation “for the use of The Episcopal Church in the [new] Diocese,”
  • to “be held subject to control of the Church in the Episcopal Diocese” and “for the use of the Church and the Diocese,” and
  • to be used for only those purposes “approved by this Church, and for no other use.”


Defendants’ Claim:

The Diocese “qualified” its accession to the Church on formation.

Truth: The Diocese “fully” acceded. “Fully” means “completely.”


Defendants’ claim:

“Nothing in … TEC’s charters authorizes” the “removal of the Diocese’s bishop” by the Presiding Bishop of The Episcopal Church.

Truth: Title III, Canon 12, § 7(c) authorizes the Presiding Bishop to issue “a declaration of removal” of a diocesan bishop.


Defendants’ claim: Constructive trusts must “conform to … statutory mandates.”

Truth: The statute Defendants wish to apply specifically excludes “constructive trust[s].”

Supported by undeniable law and facts, including Defendants’ numerous sworn past statements and admissions to other courts, the Episcopal Parties show that Defendants cannot take the Episcopal Diocese or property committed to The Episcopal Church and its constituent entities out of The Episcopal Church for their own purposes.

The Response concludes:

Defendants ask this Court to ignore the plain mandates of [the Texas Supreme Court in] Masterson and Episcopal Diocese that only Plaintiffs may represent the Diocese and Congregations as a matter of law, even if that “effectively determine[s] the property rights in question.” Defendants can decry this interpretation all they want: they admitted these mandates to the U.S. Supreme Court, just not to this Court. And they are judicially estopped from contradicting their admissions now.

And having asked for neutral principles, it is now clear that Defendants cannot prevail without ignoring the controlling Fort Worth and Texas case law on trusts and associations. They tell this Court that associations law is key, then ignore the associations law holding that a majority faction, no matter how large, cannot destroy the subordinate chapter by “taking” it out of the association. They tell this Court there is no such thing as a contractual trust but then fail even to cite the controlling Fort Worth authority on point.

And Defendants cannot prevail in light of their own repeated admissions to courts, government agencies, the Church, and others. The Diocese told the Church it “fully” acceded; now Defendants claim it was “qualified,” without identifying any actual qualification. They conceded to past courts and agencies that the Diocese and Corporation were subordinate entities of the Church, that “it was never the[] intent” of “loyal parishioners” that their “gifts … be converted to the use of” “[s]chismatic” defendants who “have abandoned communion with The Episcopal Church,” and that the Church’s “national canons” give rise to legally enforceable trusts. But they tell this Court the opposite.

Defendants close their brief by saying they want only “to be left alone”—which is the wish of every person who takes something that does not belong to them. At the end of the day, the gist of Defendants’ position is that they were the majority. But if rights were determined by majority vote, there would be no need for courts or law, only bean counters.

In the language of Masterson, Plaintiffs are the “trustees of the local church that was a subordinate part of the [larger] Church,” “entitled to possession and use of the property.” Or, in the parlance of Texas associations law, Defendants, “no matter how large,” cannot take the subordinate unit out of “the original parent body,” and Plaintiffs, “preserving their allegiance,” are the “true and lawful successors.”

Under any and every analysis, this Court should deny Defendants’ motion and grant Plaintiffs’ cross-motion.

Pursuant to the Court’s scheduling order, on Monday, December 22, 2014, the breakaway Defendants also filed their response to Plaintiffs’ motion for partial summary judgment, along with several affidavits attempting to explain away their past admissions under oath and to other courts. Under the Court’s scheduling order, both parties will file reply briefs on January 23, 2015, followed by oral argument on February 20, 2015.