First United Pentecostal Church of Beaumont D/B/A the Anchor of Beaumont, F/K/A New Life Tabernacle v. Leigh Parker

520 S.W.3d 53, 2015 WL 4760181, 2015 Tex. App. LEXIS 8478
CourtCourt of Appeals of Texas
DecidedAugust 13, 2015
DocketNO. 09-14-00413-CV
StatusPublished
Cited by1 cases

This text of 520 S.W.3d 53 (First United Pentecostal Church of Beaumont D/B/A the Anchor of Beaumont, F/K/A New Life Tabernacle v. Leigh Parker) is published on Counsel Stack Legal Research, covering Court of Appeals of Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
First United Pentecostal Church of Beaumont D/B/A the Anchor of Beaumont, F/K/A New Life Tabernacle v. Leigh Parker, 520 S.W.3d 53, 2015 WL 4760181, 2015 Tex. App. LEXIS 8478 (Tex. Ct. App. 2015).

Opinions

MEMORANDUM OPINION

STEVE McKEITHEN, Chief Justice

First United Pentecostal Church of Beaumont d/b/a The Anchor of Beaumont, f/k/a New Life Tabernacle (“the Church”) appeals the trial court’s order granting a summary judgment in favor of appellee Leigh Parker. We affirm the trial court’s summary judgment.

BACKGROUND

The Church sued attorney Kip Lamb, Lamb Law Firm, Leigh Parker, and Lonnie C. Treadway for “the recovery of damages occasioned by (1) theft and embezzlement, (2) misapplication of funds by a fiduciary, (3) breach of fiduciary duty and knowing participation in the same, (4) fraud, (5) conspiracy, (6) legal malpractice, and (7) other wrongful conduct of [defendants.” According to the Church’s petition, the Church suffered property damage from Hurricane Rita, and Treadway was the Church’s pastor and “chief executive and manager” at that time. Tread-way eventually hired a law firm to file suit against the Church’s insurance carrier, and the case subsequently settled in April 2008. The Church’s petition stated that the Church’s net recovery, after deduction of attorney’s fees and expenses, was $1,094,611.02. To protect the funds from potential judgment creditors in another pending lawsuit against the Church and its staff, the Church “directed that the funds be deposited and held in trust by the Lamb Law Firm.” The Church had hired Lamb Law Firm, Lamb, and Parker to represent Treadway in that lawsuit.

The Church contended that Parker was associated with Lamb or Lamb Law Firm, or, alternatively, that Parker, Lamb Law Firm, and Lamb “acted as a joint venture.” Additionally, the Church alleged that Parker knowingly participated in Lamb’s breach of fiduciary duty and “consciously and intentionaly made misrepresentations to [the Church]” to conceal Lamb’s theft of the funds belonging to the Church. The Church further alleged that Parker knowingly and willfully breached his duties of candor, honesty, and loyalty to the Church, or that Parker “willfully and with legal malice assisted, conspired with[,] and participated with Co-Defendants in conduct that breached the fiduciary duties owed to [the Church].” In his [57]*57answer, Parker asserted a general denial, and he contended, among other things, that he was a contract attorney “working for Kip Lamb and/or the Lamb Law Firm” and, as such, “had no right or ability to control the trust fund of Kip Lamb, did not know when money was moved in or out of the trust account ...[,] and did not have access to the books and records of the account.” Parker also contended that “he did not learn that the $1.1 million was no longer in the trust account of Lamb until the summer of 2010,” and that Lamb had spent the entire amount by the end of September 2009.

Parker filed a motion for summary judgment in July 2012, but the Church nonsuit-ed Parker prior to the scheduled hearing on the motion. After the Church brought Parker back into the case in a subsequent petition, Parker filed a supplemental motion for both traditional and no-evidence summary judgment, incorporating his previous motion for summary judgment by reference. Parker’s original motion for summary judgment was, like his supplemental motion, a hybrid motion for summary judgment. In his initial motion for summary judgment, Parker contended that the Church had no evidence of at least one element of each of the seven causes of action the Church had asserted against Parker. Parker argued that, as a contract lawyer, he had no involvement in Lamb’s trust account, never received any of the money the Church placed with Lamb, Lamb had spent the money before the end of 2009, and Parker did not know Lamb had spent the money until summer 2010. According to Parker, each of the causes of action asserted by the Church are torts, which require proof of causation, and the Church has no evidence that any of Parker’s conduct caused the disappearance of the Church’s money.

Parker attached as summary judgment evidence his affidavit, in which he averred that he was a contract lawyer, had no involvement with Lamb’s trust account and could not transfer money into or out of the account, and he never received any of the money the Church placed with Lamb. Parker also stated in the affidavit that he first learned that the Church’s money was no longer in Lamb’s trust account during the summer of 2010. In addition, Parker stated in the affidavit that he should have investigated when he learned that the money was no longer in the trust account, but he did not, and he stated that he should have informed the Church of the theft as soon as he learned of it rather than waiting until October 2011. Parker also attached bank records of deposits and withdrawals from Lamb’s trust account from the time the Church’s settlement funds were deposited, as well as a bank record indicating that Lamb was the only signatory on the trust account.

In its response to Parker’s motion, the Church contended that genuine issues of material fact exist and asserted that Parker owed fiduciary duties to the Church. The Church argued that Parker’s receipt of a profit or benefit created a presumption of unfairness that “shifts the burden of persuasion to the fiduciary or the party claiming the validity or benefits of the transaction to show that the transaction was fair and equitable to the beneficiary.” The Church contended that “the summary judgment evidence establishes active concealment of the facts by Parker which constitute actionable fraud on his part as a joint tortfeasor with Lamb.”

Attached to the Church’s response was a sworn statement given by Parker on December 20, 2011, to which was attached as an exhibit a letter Parker wrote to the Church on October 5, 2011, In the sworn statement, Parker stated, “I lied ,.,, and [58]*58I’m very regretful for doing it.” Parker also indicated that he should have investigated and reported the missing funds. When asked about his status with respect to Lamb Law Firm, Parker stated that he and Lamb were “joint venturers together.”

Parker’s letter of October 5, 2011, stated that after he became aware that Lamb Law Firm no longer possessed the funds, he “had a duty to investigate and inform [the Church] that their funds were no longer there[,]” but he did not do so. In the letter, Parker stated that when the Church asked him in July 2011 when the Church could access the funds, Parker did not disclose that the funds were no longer in Lamb Law Firm’s account, but he instead lied in the hope that anticipated funds from another project in which Lamb Law Firm was involved could be used to repay the Church. Parker explained in the letter that he had nothing to do with misappropriation of the Church’s funds, but “when I discovered it, I did not report it, and worse, I covered it up in my lies to you and the church.”

After conducting a hearing, the trial court signed an order that granted Parker’s motion and referenced both traditional and no-evidence grounds. In its sole appellate issue, the Church argues that the trial court erred in granting Parker’s motion for summary judgment “because the evidence raises questions of material fact as to the Church’s claims against Parker.” The Church only challenges the summary judgment with respect to its claims for breach of fiduciary duty, aiding and abetting, and joint enterprise.

ANALYSIS

When a party moves for both a traditional and a no-evidence summary judgment, we must first review the summary judgment under the no-evidence standards set forth in Rule 166a(i). Martinez v. Leeds, 218 S.W.3d 845, 849 (Tex.

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520 S.W.3d 53, 2015 WL 4760181, 2015 Tex. App. LEXIS 8478, Counsel Stack Legal Research, https://law.counselstack.com/opinion/first-united-pentecostal-church-of-beaumont-dba-the-anchor-of-beaumont-texapp-2015.