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Hearing April 5 in second suit against agencies Print E-mail

By Vicki Brown, Word&Way News Writer

Jefferson City -- Cole County Circuit Court Judge Richard Callahan may consider seven motions at a hearing April 5 in the second legal action the Missouri Baptist Convention has filed against five of its related agencies.

The hearing is set for 2:30 p.m. in the Division II Courtroom of the Cole County Courthouse in Jefferson City.

In 2001, Missouri Baptist University, Windermere Baptist Conference Center, Missouri Baptist Foundation and Word&Way changed their respective charters to allow them to elect their own trustees rather than to allow the convention to elect them. The Baptist Home trustees took the same action a year earlier.

The convention filed a petition for declaratory judgment against the five institutions in Cole County on Aug. 13, 2002, asking the court to require the entities to rescind the charter amendments. Judge Thomas Brown dismissed the case on March 11, 2004, ruling that the MBC Executive Board and the six MBC-affiliated churches listed as plaintiffs did not have legal standing to sue.

The six churches included First Baptist churches of Arnold, Bethany and Branson; Concord Baptist Church, Jefferson City; Oakwood Baptist Church, Kansas City; and Springhill Baptist Church, Springfield.

Convention attorneys appealed Brown's decision to the Court of Appeals for the Western District of Missouri. That case is scheduled for oral arguments at 9 a.m. on April 20 in Kansas City.

MBC lawyers filed the second petition for declaratory judgment on Oct. 25, 2004, listing five individuals as convention representatives instead of churches. Plaintiffs include Robert Curtis, pastor of Ballwin Baptist Church and MBC president in 2002; Lyn Heying, a messenger from New Oakland Baptist Church, Ralls County; Mitchell Jackson, pastor of Miner Baptist Church, Sikeston, and current MBC president; James Moore, messenger from Concord Baptist Church, Festus; and James Plymale, messenger from First Baptist Church, Villa Ridge.

The second litigation also seeks to require the five entities to rescind charter changes and to recognize only convention-elected trustees.

In December, agency attorneys filed four joint motions to dismiss the case against all five entities on four different grounds.

One motion points to the law's abatement, or pending action, doctrine. Because the first and second lawsuits are similar in nature, the motion asks the judge to dismiss the second legal action without prejudice or to stay, or suspend, the lawsuit until a judgment has been issued in the pending appeal. If a lawsuit is dismissed without prejudice, the plaintiffs can re-file.

Another motion seeks to dismiss the second case because the claims are not derivative actions. Only the attorney general or a corporate director or member may challenge that corporation's act on behalf of a third party that has not acquired that right.

To qualify as a derivative action, each individual plaintiff would have to file a separate lawsuit against the institution for which he claims to be a trustee.

Defendants also are seeking dismissal on the grounds that the five individuals and the MBC do not have standing, or the legal right, to bring the action. In the third defense motion, lawyers allege that the five corporations have no members, while the convention in its lawsuit alleges that the MBC is the sole member of each.

The MBC contends that the five individuals could bring the legal action because each has been elected by the convention as a trustee for one of the five institutions - Heying for Word&Way, Jackson for The Home, Moore for the Foundation and Plymale for MBU.

Curtis is listed as having been a trustee for Windermere in 2002 because under the terms of Windermere's pre-amendment charter, the MBC president served as a trustee. One motion calls for dismissal for all plaintiffs' lack of legal standing.

In a separate motion, defendants ask that the convention be dismissed from the legal action because the MBC cannot sue in its own name. The motion points out that the court had ruled in the March 11, 2004, dismissal that the MBC does not have the legal capacity to sue.

Judge Callahan also is expected to hear arguments on a defense motion for a protective order to limit discovery -depositions that can be taken and documents requested -- for the second legal action until the judge rules on all pending motions.

The defendants filed a motion seeking to strike some paragraphs from the convention's petition, such as statements about fraud and conspiracy, and to have other paragraphs clarified.

A convention motion to certify the five messengers as plaintiffs also is pending in Judge Callahan's court. That motion could be considered on April 5, unless the judge delays ruling on the motions to dismiss to another date or if he grants the defendants' motions. (03-23-05)

 
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