MBC attorneys ask judge to revise March 11 order

MBC attorneys ask judge to revise March 11 order

By Bob Baysinger
Managing Editor

March 30, 2004 

JEFFERSON CITY – Missouri Baptist Convention (MBC) attorneys have filed a motion asking Judge Tom Brown to reconsider or revise his recent order to permit plaintiffs to proceed with an amended petition that has already been presented to the court, naming messengers to represent the MBC.

The motion cites a court of appeals decision saying that a judge’s refusal to allow an amended petition in such a case might be “an abuse of discretion."

A motion was filed in Cole County Circuit Court here March 3, seeking permission to amend the suit, and giving the court a copy of the proposed amended petition, naming messengers as plaintiffs in place of churches and the MBC Executive Board. Brown has not ruled on the motion. The MBC suit asks a judge to decide if five renegade MBC entities – The Baptist Home, Missouri Baptist College, Word&Way, Missouri Baptist Foundation and Windermere Baptist Conference Center — acted illegally when they amended their charters to establish self-perpetuating trustee boards without Convention approval.

Brown ruled on March 11 that churches lacked the capacity and standing to pursue claims on behalf of the MBC because churches are not members of the Convention. The judge also found that the Executive Board has no “legally protectable interest in the lawsuit sufficient for standing to pursue claims against Missouri Baptist College ."

In documents filed March 24, MBC attorneys asked for clarification on the March 11 ruling.

“Although only the college’s second summary judgment motion was before the court and the other defendants’ motions were not even filed, the language of the judgment might be read to dismiss all claims by plaintiffs against all defendants – and not just the college," MBC attorneys said in their March 24 filing.

The latest brief also reminded Brown that MBC had filed a proposed petition that would have cured “any deficiency regarding the parties representing the Missouri Baptist Convention."

“The Court’s judgment, however, fails to address that (March 3) motion or to grant plaintiffs (the MBC) an opportunity to amend as provided in Missouri Supreme Court Rule 67.06," attorneys said.

MBC attorneys reminded Brown that another Supreme Court rule gives him 30 days after entering a judgment to “vacate, open, correct, amend or modify" the judgment within that time.

“The purpose of this rule is to enable the trial court to rectify any errors in the judgment and simplify or forestall any further litigation at the appellate level," the attorneys wrote. “Certainly, these rules are consistent with the admonition of the courts for appeal that cases should be decided on the merits where possible rather than on procedural questions."

The MBC legal team reminded Brown about his 2003 case (Asmus v. Capital Region Family Practice) where the Western District Court of Appeals in Missouri ruled that Brown’s refusal to grant a motion to amend “to be an abuse of discretion and reversible error."

In the Asmus case, a person brought a lawsuit that properly should have been brought by the bankruptcy trustee. While motions to dismiss for lack of standing were pending, the plaintiff sought to amend the suit and join the bankruptcy trustee as a party.

Brown dismissed the plaintiff’s lawsuit in Asmus without considering the motion for leave to amend. The Court of Appeals found reversible error and remanded the case to Brown’s court to either allow the case to proceed or provide justification for why the motion to amend should be denied.

The Court of Appeals could discern no justification in Brown’s original ruling in Asmus.

The Court of Appeals said a proposed amendment in that case could have cured the deficiency and “no reason was given" for the refusal to grant attorneys permission to amend their suit.

MBC attorneys said Clyde Farris, attorney for the college, has suggested in his second summary judgment motion that the court cannot permit an amendment, citing another 2003 Western District decision.

The legal team pointed Brown to another Western District decision, remanding a case back to a lower court.

Because the plaintiff lacked standing in a case, the trial court also lacked jurisdiction to enter judgment in favor of the defendant. In that case, the appeals court cited Supreme Court rule 67.06 and said the plaintiff should have been given an opportunity to amend its petition.

The lawyers said all the cases they had cited address factors Brown should consider in determining whether to allow the MBC case to be amended.

In addition, the legal team said allowing the MBC to file an amended petition “is the only way to avoid two cases in two courts with the risk of inconsistent holdings."

“Unless the court grants leave to amend, the churches and Executive Board must appeal now," the motion said. “The messengers also will be forced to file a separate action, and there is risk that the appeals court would find that churches have capacity and that messengers do not. At the same time messengers would be engaged in litigating a separate action advocating the opposite contention.

“The possible permutations of inconsistent holdings are almost limitless. Keeping the issues together by allowing an amendment now means judicial economy and consistency in the long run."

The lawyers said the quickest, simplest way to get the legal issue resolved is for Brown to grant leave for the MBC to add messengers to the lawsuit.

“If the court were to rule against messengers on standing, all the issues would be best framed to go to the court of appeals in one action," they said. “This assures that the court of appeals can rule – in one case and in one appeal –whether churches, the Executive Board or messengers have capacity and which ones, if any, have standing to protect their substantial rights in the charters."