JEFFERSON CITY – The Missouri Baptist Foundation (MBF) has appealed a trial court judgment which would have restored control of the corporation to trustees elected by the Missouri Baptist Convention (MBC). Foundation attorneys also filed a motion on Feb. 8 in the appeals court, accusing the new trial judge of “abuse of discretion” and asking for a remedial “writ” to be issued against him. The court summarily denied the Foundation’s motion on Feb. 9.
A notice of appeal was filed by MBF attorneys on Feb. 8 in Cole County Circuit Court, and also in the Missouri Court of Appeals, Western Division, in Kansas City. The appeal process could take nine to 12 months.
At the same time, MBF attorneys filed a motion for “writ of mandamus or prohibition,” asking the appeals court to order trial Judge Byron Kinder to make certain changes in the judgment which would require additional hearings in the trial court before an appeal would be permitted. MBF attorneys claimed that the judgment did not resolve all the issues in the case, including attorneys fees and severance payments to retiring or resigning MBF staff. MBF said Kinder “abused his discretion” by refusing to make the requested changes and by leaving the order mostly in the form as it was written by a previous judge assigned to the case, Judge Paul Wilson.
In a summary order, the appeals court denied the motion for a writ of mandamus or prohibition on Feb. 9.
The judgment from which the Foundation appealed was entered on Dec. 31, by Wilson, who ruled that MBC had the absolute right to approve amendments to the MBF corporate charter, and that, in 2001, the MBF board engaged in a scheme to “cheat the convention out of its rights.” Wilson had ordered that the breakaway board of trustees should be replaced by MBC-elected trustees while the case was on appeal.
Wilson’s term of office as judge ended Dec. 31, and Kinder was later assigned to replace him. Kinder stayed the effect of Wilson’s order but retained the language that permitted an appeal. The breakaway board of trustees will remain in office during the appeal.
On Jan. 6, the Foundation filed a motion asking the new judge to amend Wilson’s order by deleting language making it appealable. Foundation lawyers argued that the new judge should review and revise the decision, and take the time for some additional hearings before an appeal would be necessary. For example, MBF said that Wilson’s order said MBF must cover MBC’s attorneys’ fees, but did not set an amount.
At a hearing on Jan. 17, MBC attorneys told Kinder that leaving such secondary issues open during an appeal was routine, and did not make Wilson’s judgment non-appealable.
“The trial court’s judgment resolved a “judicial unit” involving key legal issues in the Foundation case, and that judicial unit may be appealed before every secondary detail of the case is resolved,” said Michael Whitehead, MBC legal counsel. Kinder agreed with MBC and did not change the language making the judgment appealable. The appeals order, denying the Foundation’s motion, refused to disturb Kinder’s ruling, clearing the way for an appeal.
Since the appeals court denied the Foundation motion for a “writ” against Kinder, the case will remain in the court of appeals for briefing, and then oral argument before a three-judge panel on a date yet to be determined. Briefing by both sides may require six months, and then a hearing date will be scheduled perhaps within another three months. A decision could come anytime thereafter.
“Judge Wilson’s judgment is well-reasoned and well written, and we believe Judge Kinder was right not to change it in any material way,” Whitehead commented. “We are confident in the MBC’s legal position before the court of appeals.”