MBC attorneys file appeals court brief in legal battle

JEFFERSON CITY, Mo. (BP)--Attorneys for the Missouri Baptist Convention filed their appellate brief in early December, as the two-year old case against five breakaway agencies moves forward in the Kansas City Court of Appeals.

In the 122-page legal memorandum filed Dec. 3, the convention lawyers argue that the Cole County trial court committed reversible error when it dismissed the case in March 2004.

According to court rules, the respondent agencies will have 30 days (until Jan. 3) to file their briefs with the Court. The MBC then will have another 15 days to file a reply brief before a hearing is scheduled sometime next spring. A three-judge panel will be assigned to hear the oral arguments.

The MBC's case, originally filed on Aug. 13, 2002, by the Missouri Baptist Convention's Executive Board and six churches representing the MBC, was dismissed by the trial judge on March 11, 2004 on procedural grounds. The judge said the petition should name messengers as members of the convention rather than churches, but he refused to permit an amendment to add messengers. Instead, he required a new petition to be filed with messengers as plaintiffs, which MBC did on Oct. 25, 2004.

Still, the MBC has appealed the several rulings arising out of the first petition. MBC's appeal brief cites four separate orders in which the trial court erred, two of which involved the dismissal and the denial of an amended petition adding messengers as plaintiffs. The convention asks the court of appeals to reverse all four orders and to send the case back to the Cole County court with instructions on some key legal issues.

The other two orders being appealed involve the judge's ruling that the MBC is not a "member" of the college corporation by virtue of MBC rights to elect trustees, and the ruling that the Missouri secretary of state was not a "necessary party" to the petition.

The introduction to the brief states: "This appeal is about righting two wrongs suffered by the Missouri Baptist Convention and its Executive Board, which operate as the denomination of Southern Baptist churches in Missouri. First, after transferring millions of dollars in assets to the respondent agencies in reliance on charter promises that the convention and/or Executive Board would have crucial rights of control over the agencies, the respondent agencies unilaterally changed their corporate charters and denied these rights, but kept the assets.

"Second, the trial court dismissed with prejudice the appellants' petition on procedural grounds, in spite of a pending motion to amend, and denied the appellants their day in court on the merits of convention rights. The convention should not suffer the risk and cost of having to start over with a new action. The four orders of the trial court should be reversed and the cause remanded to permit the convention to proceed to seek justice. This court has the power to right these wrongs."

Meanwhile, the new petition filed in Cole County has been served on the defendants who have asked for an extension of time to file their responsive pleading until Dec. 16. Michael Whitehead, MBC lead attorney, said that counsel for all parties are working together on an agreement to permit using the prior depositions and discovery in the new case, so that parties can avoid the expense of repeating the work.

Attorney Clyde Farris, representing Missouri Baptist University, has filed a motion for sanctions in the case, asking the court to penalize Whitehead and the other MBC attorneys for making "frivolous" allegations about a "conspiracy" to defraud the convention. Farris says there is no evidence of a conspiracy, and the MBC attorneys know it, so they should be sanctioned, or fined by the court. MBC Attorneys include John Holstein (former chief justice of the Missouri Supreme Court), James Freeman, Stan Masters, and Chuck Hatfield.

"Mr. Farris' motion is itself frivolous and may warrant sanctions," Whitehead said. "The facts showing a conspiracy are obvious. There was a common scheme, with common actors, with common attorneys, and with a common unlawful result. We call that a conspiracy. They call it a coincidence. We'll let the court decide."

The parties will file written briefs regarding the motion and expect to schedule a hearing in the Cole County court in January. Only the college has made the motion for sanctions, which has not been joined by attorneys for the other four agencies.


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