Jefferson City — Attorneys for Windermere Baptist Conference Center have filed a motion for continuance of the Oct. 12 trial date in its case against the Missouri Baptist Convention (MBC). In a motion of nearly 100-pages, including exhibits, the Windermere attorneys argued that the trial should be postponed at least 60 days in order to allow time for the trial judge Richard Callahan to consider a motion for summary judgment which they recently filed.
At a hearing requested by the MBC, MBC counsel Charles Hatfield opposed the motion for continuance. He said the trial date has been set since May, and the reasons cited by defendant Windermere for a delay are inadequate. After hearing from all counsel, Callahan granted the Windermere motion and set a new trial date of February 1, 2008, saying he needed time to review the new summary judgment motion.
Windermere’s summary judgment motion was filed on August 22, and is about 500 pages in length, including exhibits. It was filed as a joint motion on behalf of Windermere, The Baptist Home and Word & Way, all defendants in the same case, and all represented by the same law firm. Defendant Missouri Baptist College and Missouri Baptist Foundation did not join in the motion. Only the Windermere case was set for trial in October. A Windermere brief in support of the continuance alleged that the summary judgment motion could not have been filed sooner, since the plaintiffs’ only produced a “corporate representative” for deposition on August 15. Dr. David Tolliver gave his third deposition on that date, but it was his first deposition as interim executive director, testifying on behalf of the corporation.
By court rules, the MBC would have up to 30 days to respond to the summary judgment motion with its own response brief, and then Windermere would have an additional 15 days to file a reply brief. Based on these time limits, the summary judgment motion could be argued by October 10, two days before jury selection was to begin in the Windermere trial. After granting the continuance, Judge Callahan set a hearing on the summary judgment motion for November 20, 2007.
In another motion filed for the Sep. 10 hearing, MBC attorneys asked the judge to stay all discovery and proceedings regarding the other defendants until the Windermere trial is concluded. Attorneys for the Missouri Baptist University and Missouri Baptist Foundation have continued to file discovery requests and hearing notices, all of which merely divert MBC attorneys from trial preparation for Windermere. In view of the continuance, Callahan declined to stay other discovery.
On Friday, August 31, defendant Windermere served notice that it intends to call Dr. Don Wideman as their “non-retained expert witness” on issues of Baptist polity and relationships among convention agencies. In response, MBC attorneys designated their own expert witnesses to counter Dr. Wideman’s expected testimony.
In an earlier deposition, Wideman testified that the convention was in a voluntary cooperative relationship with the agencies, giving Cooperative Programs dollars in support as long as the agency permitted the MBC to elect trustees. Wideman has opined, however, that if an agency refuses to allow the MBC to elect trustees, the MBC’s only recourse is to stop funding the agency.
Wideman was former Executive Director of the MBC, retiring in 1998. He was thereafter employed by the Partee Center at William Jewell College.
Non-retained experts designated by MBC included Dr. David Tolliver, the current interim executive director of the MBC, and former convention president; and Dr. David Hankins, current executive director of the Louisiana Baptist Convention, and former Vice president of convention policy for the SBC Executive Committee in Nashville. It is expected that all newly identified expert witnesses will likely be deposed in the next few weeks, especially if the trial date is continued for 2-3 months.
In a statement to Pathway, Whitehead clarified the court’s order dismissing the conspiracy counts. “Judge Tom Brown had previously dismissed the counts of “conspiracy” from plaintiffs’ petition. When plaintiffs filed an amended petition, they restated the conspiracy count, merely to show that they had not abandoned the claim for appeal. Still, the MBC stipulated that the conspiracy counts had been dismissed by Judge Brown. Judge Callahan signed a new order striking the conspiracy counts from the case, but this was not a new order. It was the logical extension of a previous order.”
Also at the August 17 hearing, Judge Callahan heard arguments from all counsel about whether the Convention is the “sole member” of each of the defendant corporations. (The college did not participate in this argument, since Judge Brown had already entered an order in 2003 that the MBC was not a member of the College corporation. Callahan once again told the attorneys that he was leaning toward a finding that the agency corporations had no members but he took the matter under advisement. By press time, Callahan still had not ruled on the motion.
Whitehead stated that the “sole member” theory was one of several theories of liability asserted by the plaintiffs. “Membership status is not crucial to MBC’s case. Even non-members have contract rights. The charter gives MBC the right to elect trustees, and that right should be enforceable. If not, then MBC should get its property back, free and clear of debt.”