El Pescador Church, Inc. v. Hector P. Ferrero, Rosa Ferrero, Antonio Nunez, and Diego Sanchez ( 2019 )

COURT OF APPEALS
EIGHTH DISTRICT OF TEXAS
EL PASO, TEXAS
EL PESCADOR CHURCH, INC., §
§
No. 08-18-00029-CV
Appellant, §
Appeal from the
v. §
384th District Court
§
HECTOR P. FERRERO, ROSA of El Paso County, Texas
FERRERO, ANTONIO NUNEZ, AND §
DIEGO SANCHEZ,
§
§
Appellees. (TC#2015DCV0484)
§
OPINION
At its core, this is a dispute between factions in a non-denominational church. But
specifically, we are asked to review several dispositive motions granted in favor of the pastor, his
wife, and two other individuals, all of whom who were alleged to have breached one or more duties
to the non-profit corporation that established the church. Based on the record before us, we dismiss
in part for want of jurisdiction, reverse and remand in part, and affirm in part.
FACTUAL BACKGROUND
The relevant facts are all derived from the pleadings and summary judgment record. On
March 10, 1995, six persons, who also formed the original board of directors, incorporated El
1
Pescador Church, Inc. (the Church) under the Texas Non-Profit Corporation Act. The initial six
board of directors were identified as: Griselda Scalise, Serafin Scalise, Sergio Saenz, Teresa
Leyva, Luz Gaham, and Armando Oaxaca. Serafin Scalise served as the pastor at that time. The
corporation was to have no members. The board would serve until the adoption of bylaws which
would set the number of directors at not less than five persons.
The bylaws, however, are not a part of our record. In fact, the next corporate document in
our record appears to be a designation of the registered agent for service filed with the Texas
Secretary of State’s office some thirteen years later, on December 28, 2007. That filing reflects
that the directors, who also served as officers, include: Hector Ferrero (president and director);
Rosa Ferrero (secretary and director); and Armando Oaxaca (vice president-treasurer and director)
Hector Ferrero apparently began serving as the pastor in 2007 and his wife, Rosa Ferrero, served
as an assistant to the pastor.
The next corporate record appears to be the “Minutes of Meeting” dated another seven
years later--January 18, 2014. The meeting came about because on January 3, 2014, three
individuals who claimed to represent the board of directors, sent a letter through counsel asking
Hector Ferrero to help locate a filing cabinet containing corporate records. The three individuals
are identified as Carmen Yanez, Arturo Serrano, and Armando Oaxaca. Of the three, only
Armando Oaxaca was an original board member.
In response, Hector Ferrero wrote to the three, informing them that they did not constitute
the board of directors, that the church congregation in good standing was in process of electing
new members to the board, and the request to review corporate records was declined. Hector
Ferrero also called a special board meeting before the church congregation on January 18, 2014.
The minutes of that special board meeting reflect that there were only three officers and directors
2
at that time: Hector Ferrero who served president and chief executive officer, Rosa Ferrero who
served as corporate secretary, and absent, was Armando Oaxaca, the treasurer. The minutes also
reflect that Antonio Nunez attended as a guest of the board of directors. He is identified as serving
in three roles: (1) accountant, (2) church administration specialist, and (3) notary public.
The minutes further reflect that Hector Ferrero called the special meeting to “expose” a
group of people who were the “self proclaim[ed]” board of directors. Further, the church “hired”
Nunez to perform an audit given the lack of corporate documents. According to Nunez, the only
available public information recognized the following officers and directors: Hector Ferrero
(president and director); Rosa Ferrero (secretary and director); and Armando Oaxaca (treasurer,
vice president, and director) Nunez then advised the congregation on their duties and
responsibilities for electing the board of directors. He counseled that board members were to be
elected by a two-thirds vote of the membership in good standing.
The congregation voted unanimously to elect a committee to represent them and serve a
responsive letter on Carmen Yanez, Armando Oaxaca, and Arturo Serrano. The responsive letter
was drafted under Hector Ferrero’s signature. These same three persons were unanimously
declared no longer members in good standing of the church, and “are not recognized as Board of
Directors and have no authority to represent” the church. Hector Ferrero was to take over the
duties of treasurer, and Armando Oaxaca was to “render the existing [Church] bank account” and
financial statements to Hector Ferrero. Armando Oaxaca was excluded as the treasurer specifically
because he was not attending services or tithing. Finally, the minutes reflect that Hector Ferrero
would complete a census of all members who are in good standing based on tithes and church
attendance, and following that, those members in good standing would vote on a new permanent
board of directors.
3
The letter approved by the congregation, dated January 28, 2014 and under Hector
Ferrero’s signature, denied that Carmen Yanez, Arturo Serrano, and Armando Oaxaca represented
the board. The letter attached the minutes from the special meeting and restated that the members
in good standing with the congregation were soon to elect new board members. Armando Oaxaca
was requested to appear before the congregation at the next Sunday’s services and “surrender the
finances” of the Church.
PROCEDURAL BACKGROUND
Over a year later, attorney Alfonso Soto filed suit on behalf of the Church against Hector
Ferrero, Rosa Ferrero, Nunez, and Diego Sanchez.1 The suit alleges that Hector Ferrero executed
a Form 802 filing with the Secretary of State that listed himself as the agent for service. This form
also lists only three officers and directors: Hector Ferrero, Rosa Ferrero, and Armando Oaxaca.
But the suit alleges Hector Ferrero did not have the authority to execute and file this form. Further,
Hector Ferrero, again without authorization, “retained the services” of Nunez to assist the Church
with auditing, legal advice, and church management and operations.
The suit claims that based on Nunez’s advice, Hector Ferrero and Rosa Ferrero took
possession of the Church’s corporate records, bank accounts, and that they further expelled as
church members the existing board of directors and improperly named a new board. The suit
claims that the Church, through its true board of directors, demanded that Hector Ferrero cease
and desist from these actions, and when he failed to do so, the Church through its board filed this
lawsuit. The suit alleges five causes of action: (1) conversion, (2) breach of fiduciary duty, (3)
fraud, (4) the unauthorized practice of public accounting, and (5) the unauthorized practice of law.
We add some explanation for each claim.
1
The factual allegations nowhere explain Sanchez’s connection to the Church, the board, or the case.
4
The conversion claim is alleged against Hector Ferrero, Rosa Ferrero, and Sanchez, and is
based on the advice of Nunez. It claims that Hector Ferrero with the assistance of Rosa Ferrero
and Sanchez (and based on the advice of Nunez) “wrongfully exercised dominion and control”
over church property by “changing the bank where funds are deposited, changing the locks to the
temple, taking control of the tithe, and subjecting any and all parities [sic] that disagree with these
actions to intimidation, ridicule, and humiliation directed from the pulpit to the faithful.”
The breach of fiduciary duty claim is alleged only against Hector Ferrero. It claims that as
the president and as a member of the board of directors, he owed but breached several duties to
the Church, including the duty of care, loyalty, utmost good faith, honesty and candor, full
disclosure, and the duty to refrain from self-dealing. He allegedly did so by acting in derogation
of the unspecified provisions of law, regulations, and the Church’s articles of incorporation.
The fraud allegation is asserted against Hector Ferrero through his own acts or omissions,
and the other defendants through their “aid and support[.]” The claim is based on the
representation to the congregation that Hector Ferrero was entitled to solely conduct the
management and operations of the Church, and as a result, he dispossessed the board of directors
of management over the Church.
The last two claims are asserted only against Nunez. One count alleges that he has engaged
in the practice of accountancy, despite not being a licensed certified public accountant. As such,
he misrepresented his professional abilities to the Church. The count asserts liability under
TEX.BUS. & COM.CODE ANN § 17.46(b)(2), (3), and (5).2 The last count asserts a similar claim
2
Those sections make actionable:
(2) causing confusion or misunderstanding as to the source, sponsorship, approval, or certification
of goods or services;
(3) causing confusion or misunderstanding as to affiliation, connection, or association with, or
certification by, another;
...
5
against Nunez, but it is based on providing legal advice while not being a licensed lawyer in the
State of Texas.
The suit seeks an accounting of funds received and spent, as well as monetary damages.
It does not specifically seek any declaratory relief as to who is or is not a director of the corporation,
nor does it seek the return of any property held by any defendant.
All the defendants answered and raised the issue of standing of the three putative board
members to authorize the suit and retain an attorney on behalf of the Church. But that issue was
never formally presented to the trial court, nor would the record be sufficient for us to decide that
matter. 3 Instead, the DTPA claims against Nunez were dismissed pursuant to a plea to the
jurisdiction. The remaining conversion and fraud claims against Nunez were dismissed by
summary judgment. Defendants Hector Ferrero, Rosa Ferrero, and Sanchez prevailed on their
own motion for no evidence motion for summary judgment. The Church challenges those rulings
on appeal, but first we take a detour to discuss our own jurisdiction.
(5) representing that goods or services have sponsorship, approval, characteristics, ingredients, uses,
benefits, or quantities which they do not have or that a person has a sponsorship, approval, status,
affiliation, or connection which the person does not;
TEX.BUS. & COM.CODE ANN. § 17.46(b)(2), (3), and (5).
3
This dispute began with a letter asking for a filing cabinet containing the corporate records. Despite this, the Church
apparently never served any requests for production to ask any of the defendants to produce whatever records they
might have. And despite this case raising the issue of who constitutes the current board of directors (and thus who
might authorize the filing of suit), the bylaws are not in our record, nor any explanation of how the Church got from
the original six board member to either the three board members disclosed on the Form 802, or the three board
members who supposedly authorized attorney Soto to file suit. TEX.R.CIV.P. 12 would have provided one means to
raise that issue. See Candle Meadow Homeowners Assn. v. Jackson, No. 05-17-01227-CV, 2018 WL 6187616, at *1
(Tex.App.--Dallas Nov. 27, 2018, no pet. h.)(mem.op. not designated for publication)(review of trial court finding
under Rule 12 that board of directors had not authorized attorney to file suit on its behalf).
6
ECCLESIASTICAL ABSTENSION
We begin by addressing one issue sua sponte, which was not raised below or mentioned in
the parties’ opening briefs.4
The Free Exercise Clause of the First Amendment to the United States Constitution
provides that “Congress shall make no law respecting an establishment of religion, or prohibiting
the free exercise thereof.” U.S. Const. amend. I. The First Amendment governs conduct of the
several states by virtue of the 14th Amendment. See Cantwell v. Connecticut, 310 U.S. 296, 303
(1940). Aside from interfering with an individual's observance or practice of a particular faith,
government action can burden the free exercise of religion by encroaching on a church's ability to
manage its internal affairs. See, e.g., Kedroff v. St. Nicholas Cathedral, 344 U.S. 94, 116 (1952);
Westbrook v. Penley, 231 S.W.3d 389, 395 (Tex. 2007). Accordingly, the Free Exercise Clause
“severely circumscribes the role that civil courts may play in resolving church property disputes[.]”
Presbyterian Church v. Hull Church, 393 U.S. 440, 449 (1969). Specifically, civil courts cannot
inquire into matters concerning “theological controversy, church discipline, ecclesiastical
government, or the conformity of the members of the church to the standard of morals required of
them.” Serbian E. Orthodox Diocese for U. S. of Am. and Canada v. Milivojevich, 426 U.S. 696,
713-14 (1976), quoting Watson v. Jones, 80 U.S. 679, 733 (1871). We follow this same limitation
in Texas under a doctrine referred to as ecclesiastical abstention. Masterson v. Diocese of N.W.
Texas, 422 S.W.3d 594, 601 (Tex. 2013); Episcopal Diocese of Ft. Worth v. Episcopal Church,
422 S.W.3d 646, 650 (Tex. 2013)
The ecclesiastical abstention doctrine is more than just a limitation on a court’s actions, it
is a limitation on its subject matter jurisdiction. Masterson, 422 S.W.3d at 605-06. And we are
4
We asked for post-submission letter briefs by the parties, which each have filed.
7
“obligated to review sua sponte issues affecting jurisdiction.” M.O. Dental Lab v. Rape, 139
S.W.3d 671, 673 (Tex. 2004); see also Rusk State Hosp. v. Black, 392 S.W.3d 88, 103 (Tex. 2012)
(“Subject matter jurisdiction cannot be waived or conferred by agreement, can be raised at any
time, and must be considered by a court sua sponte.”). This would include the question of
ecclesiastical abstention. Singh v. Sandhar, 495 S.W.3d 482, 491 n.8 (Tex.App.--Houston [14th
Dist.] 2016, no pet.)(trial court could have correctly dismissed claims covered by ecclesiastical
matters even if not raised by the parties); Thiagarajan v. Tadepalli, 430 S.W.3d 589, 596 n.3
(Tex.App.--Houston [14th Dist.] 2014, pet. denied)(“[T]his court is obligated to address the
existence of subject matter jurisdiction sua sponte regardless of whether the parties challenged
it.”).
Yet while ecclesiastical abstention prevents us from resolving some disputes, it does not
shield all suits simply because a parishioner or church is a party-litigant. Courts also have an
obligation to resolve disputes and “cannot delegate their judicial prerogative where jurisdiction
exists.” Masterson, 422 S.W.3d at 606 (courts must “fulfill their constitutional obligation to
exercise jurisdiction where it exists, yet refrain from exercising jurisdiction where it does not
exist.”). Moreover, churches and their congregations “exist and function within the civil
community,” and therefore they are “amenable to rules governing property rights, torts, and
criminal conduct.” Williams v. Gleason, 26 S.W.3d 54, 59 (Tex.App.--Houston [14th Dist.] 2000,
pet. denied); see also Pleasant Glade Assembly of God v. Schubert, 264 S.W.3d 1, 12 (Tex. 2008)
(“[R]eligious practices that threaten the public's health, safety, or general welfare cannot be
tolerated as protected religious belief.”)
For those disputes that we can resolve, Texas courts must apply a “neutral principles
methodology” meaning they “apply neutral principles of law to non-ecclesiastical issues involving
8
religious entities in the same manner as they apply those principles to other entities and issues.”
Masterson, 422 S.W.3d at 606; Episcopal Diocese of Ft. Worth, 422 S.W.3d at 650 (“But courts
applying the neutral principles methodology defer to religious entities' decisions on ecclesiastical
and church polity issues such as who may be members of the entities and whether to remove a
bishop or pastor, while they decide non-ecclesiastical issues such as property ownership and
whether trusts exist based on the same neutral principles of secular law that apply to other
entities.”). For property ownership disputes, neutral principles “will usually include considering
evidence such as deeds to the properties, terms of the local church charter (including articles of
incorporation and by laws, if any), and relevant provisions of governing documents of the general
church.” Masterson, 422 S.W.3d at 603.
As our supreme court noted, the “differences between ecclesiastical and non-ecclesiastical
issues will not always be distinct, and that many disputes of the type before us will require courts
to analyze church documents and organizational structures to some degree.” Id. at 606; see also
Tran v. Fiorenza, 934 S.W.2d 740, 743 (Tex.App.--Houston [1st Dist.] 1996, no pet.)(“The
difficulty comes in determining whether a particular dispute is ‘ecclesiastical’ or simply a civil
law controversy in which church officials happen to be involved.”). In so deciding, “courts must
look to the substance and effect of a plaintiff's complaint to determine its ecclesiastical implication,
not its emblemata.” Tran, 934 S.W.2d at 743, citing Green v. United Pentecostal Church Int'l,
899 S.W.2d 28, 30 (Tex.App.--Austin 1995, writ denied); see also Mouton v. Christian Faith
Missionary Baptist Church, 498 S.W.3d 143, 149-50 (Tex.App.--Houston [1st Dist.] 2016, no
pet.)(sustaining challenge to jurisdiction because appellants' claims were “inextricably intertwined
with inherently ecclesiastical issues”); Williams, 26 S.W.3d at 59 (“Whether this suit is
ecclesiastical, or concerns property rights, torts, or criminal conduct, is determined by first
9
examining the substance and effect of the [plaintiffs'] petition--without considering what they use
as claims--to determine its ecclesiastical implication.”).
While the dividing line is not always clear, existing case law gives us some guide posts.
First, questions of church membership and the discipline of church members uniformly invoke
ecclesiastical abstention. Thus, in Mouton v. Christian Faith Missionary Baptist Church, the court
declined to hear a suit inextricably intertwined with the selection of the church's pastor and the
church's expulsion of members--both issues are “long recognized to be inherently ecclesiastical
and of prime importance to the exercise of religious liberty.” Mouton, 498 S.W.3d at 150.
Similarly, in Singh v. Sandhar, a trial court erred in involving itself with validation of members
eligible to vote in a church election, as well as requiring the election in the first place. One faction
in the church had filed suit to set aside an election for a governing council, claiming the election
violated the church’s bylaws. Singh, 495 S.W.3d at 485. The trial court ordered a new election,
and then partially entangled itself into a dispute over the list of persons eligible to vote. Id. at 485-
86. The appellate court, however, concluded that ecclesiastical abstention precluded both the trial
court’s role in policing the voter list, as well as the initial decision to order a new election. Id. at
490-91, 493. Absent a question of property rights, the internal governance dispute was beyond the
scope of trial court’s jurisdiction. Id.
Along similar lines, the exclusion of persons from entering church property may raise an
ecclesiastical matter. In Retta v. Mekonen, a trial court entered an injunction prohibiting a church
from excluding from worship services any person who was peaceably participating in the service.
338 S.W.3d 72, 75 (Tex.App.--Dallas 2011, no pet.). The issue arose because the church, in
apparent contravention of its own bylaws, had required monthly membership dues that several
parishioners failed to pay. Id. at 74. The appellate court concluded, however, that a church has a
10
right to control its membership without government interference, which includes the authority to
determine who could be excluded from the property. Id. at 76. Moreover, the church’s failure to
follow its own bylaws on a matter of internal governance was also a matter of ecclesiastical
concern, which courts are likewise prohibited from interfering with. Id. at 77.5
Another line of cases has applied ecclesiastical abstention to defamation suits stemming
from pastoral statements. The court in In re Godwin confronted a defamation suit based on the
pastor publicly “marking” a former member of the church by accusing him of bribery and slander.
293 S.W.3d 742, 749 (Tex.App.--San Antonio 2009, orig. proceeding). “Marking” is a concept
that the church claimed was founded in the scriptures.6 Id. at 748. While acknowledging that there
could be some outer limit to abstention in the defamation context, the court nonetheless concluded
that defamation and intentional infliction of emotional distress claims based on the marking were
beyond the jurisdiction of the courts. Id. at 749; see also Westbrook v. Penley, 231 S.W.3d 389,
391 (Tex. 2007)(court lacked jurisdiction to hear claims arising from pastor encouraging
congregation to “shun” former parishioner for “biblically inappropriate” relationship);
Thiagarajan, 430 S.W.3d at 594-95 (declining to hear defamation suit between church members
over emails about church policy); In re Alief Vietnamese All. Church, 576 S.W.3d 421, 425-426
(Tex.App.--Houston [1st Dist.] 2019, no pet.)(court lacked jurisdiction over suit based on pastor’s
rebuke of church member before congregation when rebuke was grounded in church bylaws
outlining how disputes were to be handled).
5
The court did hear a portion of the injunction that prohibited the church from destroying church documents or records.
It concluded, however, that the movants had not made a sufficient showing to support the temporary injunction on
that issue. Retta, 338 S.W.3d at 78.
6
Romans 17-20 (King James version).
11
In re Godwin raised another issue. The former church member alleged that the church had
misused church funds, which formed the basis of a fraud allegation. 293 S.W.3d at 749-50. Some
of the disputed financial expenditures, however, were approved by a committee based on the
church’s doctrine. Id. Necessarily, the determination of whether the financial expenditures were
proper would have required an inquiry into whether the expenditures were justified by the church’s
religious doctrine and practices. Id. Accordingly, the court lacked any jurisdiction to hear the
fraud claim upon which the challenged expenditures was based. Id.
One area where courts have not uniformly abstained, however, are property ownership
disputes. That issue reached the Texas appellate courts following a schism in the Episcopal faith
over a doctrinal dispute.7 The Texas Supreme Court heard one such suit in Masterson. Some
members of a local parish sought to leave the national organization (“The Episcopal Church”) and
the regional diocese that oversaw the parish. 422 S.W.3d at 597-98. The parishioners did so by
voting to amend the bylaws of the Texas non-profit corporation that established the parish. Id.
The diocese refused to honor the amendments, and it appointed a new priest-in-charge and
recognized a group of loyal parishioners who elected a new vestry (a parish’s governing council).
Id. A lawsuit followed, seeking in part declarations as to who controlled the parish property, and
which faction represented the true parish. Id. at 598. On cross-motions for summary judgment,
the trial court and intermediate court of appeals sided with the diocese and national church. Id. at
599-600.
The Texas Supreme Court reversed and remanded. The court agreed that the trial court
lacked jurisdiction over whether the diocese’s bishop was authorized to form a new parish,
recognize its membership as the “true” parish, and whether he could or did authorize that parish to
7
See The Episcopal Church v. Salazar, 547 S.W.3d 353, 370-72 (Tex.App.--Fort Worth 2018, pet. granted)(outlining
origin and history of one long-running lawsuit).
12
establish a vestry. Id. at 608. These were ecclesiastical matters of church governance over which
the trial court properly deferred to the bishop’s exercise of ecclesiastical authority. Id. But those
decisions did not necessarily determine the property ownership issue, nor did they govern the
secular legal question of the validity of the parish members' vote to amend the bylaws and articles
of incorporation. Id. at 610. The court held that the corporation, with its secular existence derived
from state law and its articles of incorporation and bylaws, is subject to a neutral principles’
determination. Id. As such, whether the corporation’s bylaws were complied with when a vote
was taken to disassociate the corporation from the hierarchical church was reviewable. Id.
Application
Based on these landmarks, we conclude that the trial court lacked the subject matter
jurisdiction to hear the claims against Hector Ferrero, Rosa Ferrero, and Sanchez. Of the three
theories asserted in the petition, the conversion allegation comes closest to the Masterson line of
cases. Yet that claim does not involve any issue of title to property. Nor does it seek any
declaration of who has access to, or control over the Church’s personal property or accounts. For
that matter, it does not seek any sort of declaration as to who the officers or directors of the Church
are. Rather, it only seeks monetary damages for the defendants’ respective roles in the conversion
of personal property, the tithe, and the bank account. To develop the case for those monetary
damages, however, the Church would necessarily embroil the courts into membership, church
discipline, and church governance matters. That is to say, the claim for monetary damages would
require more than a neutral principles analysis of the articles of incorporation. The spark for
monetary relief will touch several ecclesiastical matters. We reach that conclusion both from the
pleaded allegations and the evidence that the Church offered in response to the motions for
summary judgment.
13
The Church’s pleaded allegation under the conversion count claims that the defendants
wrongfully exercised control over Church property “by changing the bank where funds are
deposited, changing the locks to the temple, taking control of the tithe, and subjecting any and all
parities [sic] that disagree with these actions to intimidation, ridicule, and humiliation directed
from the pulpit to the faithful.” These claims largely fall within areas previously held as triggering
ecclesiastical abstention. See Retta, 338 S.W.3d at 75 (access to church property); In re Godwin,
293 S.W.3d at 749 (statements made from pulpit and use of church monies); Hawkins v.
Friendship Missionary Baptist Church, 69 S.W.3d 756, 759 (Tex.App.--Houston [14th Dist.]
2002, no pet.)(in absence of controlling governing document, a power struggle between the
Church, its deacons, and the pastor could not be resolved only on neutral principles of law, but
would require reference to religious doctrine or polity).
Additionally, the evidence that the Church used to respond to the motion for summary
judgment shows how its case is inextricably intertwined with ecclesiastical issues. That evidence
consists of two affidavits that in themselves do not state any substantive facts germane to the
conversion claim. Rather, the affidavits attempt to prove up other documents, such as the original
articles of incorporation, demand letters and responses to the demand letters, and most importantly,
the meeting minutes from the January 18, 2014 church meeting. The meeting minutes state that
“the congregation requested to place in discipline the Treasurer--Armando Oaxaca and for him to
be destitute of the position of Treasurer.” The minutes conclude that “Oaxaca can't function as
Treasurer since he is not attending services or tithing to the congregation.” Discipline of church
members, particularly based on a scriptural concept such as tithing, are uniquely ecclesiastical.
See Mouton, 498 S.W.3d at 150 (declining to hear discipline and membership issues); Hawthorne
v. Couch, 911 So. 2d 907, 910 (La. App. 2d Cir. 2005)(“The issue of tithing is at its core a purely
14
ecclesiastical matter.”); Glass v. First United Pentecostal Church of DeRidder, 676 So. 2d 724,
735 (La. App. 3d Cir. 1996)(“Furthermore, tithing is at the root of ecclesiastical doctrine. If these
complaints are in any way related to discipline on such, they would fall outside of the Court's
jurisdiction.”). Additionally, the minutes state that the “bank account is the property of [the
Church] and no money shall be used unless it is approved by two thirds vote of the congregation
of [the Church].” The Church’s summary judgment proofs showed that while the bank account
was moved, any expenditures were approved by a two-thirds vote of the congregation. At best,
this raises an internal governance issue for which the courts should abstain. See In re Godwin, 293
S.W.3d at 749-50 (declining to hear fraud claim over disputed use of church funds); Hawkins, 69
S.W.3d at 759 (declining to hear dispute that in part involved deacons attempt to interfere with
pastor’s expenditure of funds).
The other claims--fraud and breach of fiduciary duty, equally implicate facts that are
inextricably intertwined with internal church governance, the role of the pastor in church affairs,
membership in the congregation, and statements of the pastor from the pulpit. The breach of
fiduciary allegations itself claims Hector Ferrero “has misused the pulpit to gain the control of the
purse and the power over the congregation for his sole benefit.” The fraud allegation also refers
to representations made to the congregation and misleading the congregation about internal church
governance. We likewise conclude the trial court also lacked the jurisdiction to hear those claims
under ecclesiastical abstention.8
8
And even if we err in reaching this conclusion, we would have certainly been required to affirm the judgment below
as to Rosa Ferrero and Sanchez. They filed a no evidence motion for summary judgment, but none of the proofs that
the Church filed in opposition to that motion raise any fact issue as to them. None of the proofs even mention Sanchez.
And the proofs also only show that Rosa Ferrero is listed on some filings as a corporate officer and director. They
fail to document any action that she took in that, or any other capacity. Based on that record, we would be compelled
to affirm their dismissal below.
15
THE CLAIMS AGAINST NUNEZ
The Church also sued Nunez for advice that he gave to Hector Ferrero and the
congregation. He is alleged to have provided accounting and legal advice while not being licensed
in those occupations. There is no allegation or evidence that his advice was ecclesiastical in nature,
but rather the pleading alleges it is related to corporate governance under the corporation’s articles
of incorporation and Texas law. We view those claims differently from the allegations against the
church officers and congregants.
Nunez Plea to the Jurisdiction and Special Exceptions
Nunez filed a plea to the jurisdiction levelled at the DTPA claims asserted against him.
The text of the motion claims that the Church is not a “consumer” and thus has no standing to
assert the two DTPA claims. It specifically claims that “[n]owhere, in its Original Petition does
[the Church] allege that it sought out [Nunez’s] services. Nor does [the Church] allege that it was
privy to, or the beneficiary of any alleged transaction wherein [Nunez’s] services were solicited
and paid for.” Nunez orally supplemented his motion at the hearing by invoking the DTPA’s
exemption for professional services. TEX.BUS. & COM.CODE ANN § 17.49. Because Nunez was
faulted for providing accounting and legal services, which are necessarily professional services,
he contended that the exemption would also bar the claim.
At the hearing, the Church responded by referring the trial court to the January 18, 2014
meeting minutes that reflect that Nunez had been hired to provide auditing and other services. The
Church further argued that Nunez’s repeated representation of being a “Notary Public” mislead
the congregation into believing he was a “notaria publica” as that term might be understood in
Mexico. The Church also asked that it be allowed to replead if its claim was unclear. Nonetheless,
the trial court granted the plea to the jurisdiction and dismissed the two claims for unauthorized
16
practice of accountancy and law. In the Church’s first issue, it contends the trial court erred in
making that ruling.
Standard of Review and Controlling Law
A court must possess subject matter jurisdiction to decide a case, and standing is implicit
in the concept of subject matter jurisdiction. Tex. Ass'n of Bus. v. Tex. Air Control Bd., 852 S.W.2d
440, 443 (Tex. 1993). Whether a party has standing to maintain a suit is a question of law. Tex.
Natural Res. Conservation Comm'n v. IT-Davy, 74 S.W.3d 849, 855 (Tex. 2002). A plaintiff
carries the burden to allege facts that affirmatively demonstrate the court's jurisdiction to hear the
cause. Tex. Ass'n of Bus., 852 S.W.2d at 446. In reviewing a standing ruling, an appellate court
construes the petition in favor of the pleader. Id. We are mindful that the pleader need not preview
their case on the merits simply to establish jurisdiction. See Bland Indep. Sch. Dist. v. Blue, 34
S.W.3d 547, 554-55 (Tex. 2000).
Standing to sue may be predicated upon either statutory or common law grounds. See, e.g.,
Williams v. Lara, 52 S.W.3d 171, 178-79 (Tex. 2001). When standing has been statutorily
conferred, the statute itself serves as the proper framework for a standing analysis. Schecter v.
Wildwood Developers, L.L.C., 214 S.W.3d 117, 121 (Tex.App.--El Paso 2006, no pet.). The
DTPA prohibits false, misleading, or deceptive acts or practices in the conduct of any trade or
commerce. See TEX.BUS. & COM.CODE ANN. § 17.46(b)(5), (7), (13), (22), (24). To recover under
the DTPA, the plaintiff must show that (1) it is a consumer, (2) the defendant engaged in a false,
misleading, or deceptive act, and (3) the act constituted a producing cause of compensable
damages. See id. at § 17.50(a)(1); Doe v. Boys Clubs of Greater Dallas, Inc., 907 S.W.2d 472,
478 (Tex. 1995). Here, we deal only with a claim that the Church lacks the statutorily required
element of being a “consumer” under the DTPA.
17
A consumer is one who “seeks or acquires by purchase or lease, any goods or services.”
TEX.BUS. & COM.CODE ANN. § 17.45(4); Kennedy v. Sale, 689 S.W.2d 890, 893 (Tex. 1985). A
consumer need not be the actual purchaser or lessor of goods or services; a beneficiary of goods
or services may be a consumer for purposes of the DTPA. See Arthur Andersen & Co. v. Perry
Equip. Corp., 945 S.W.2d 812, 815 (Tex. 1997)(acquiring company had consumer status as to
accounting services rendered to company being acquired and which were contemplated by the
acquisition); Kennedy, 689 S.W.2d at 893 (employee had consumer status for group health
insurance policy purchased by his employer). Nor is strict privity required:
Privity between the plaintiff and defendant is not a consideration in deciding the
plaintiff's status as a consumer under the DTPA.... A plaintiff establishes his
standing as a consumer in terms of his relationship to a transaction, not by a
contractual relationship with the defendant. The only requirement is that the goods
or services sought or acquired by the consumer form the basis of his complaint.
Flenniken v. Longview Bank & Trust Co., 661 S.W.2d 705, 707 (Tex. 1983). Consumer status
may be extended to third parties in those limited situations when the transaction was specifically
required by or intended to benefit the third party and the goods or services were rendered to benefit
the third party. Arthur Andersen, 945 S.W.2d at 815. “The relevant inquiries to be made in
determining consumer status are (1) to whom the representations were made; (2) who suffered
damages from the representations; and (3) who was affected by the defendant's alleged
misconduct.” Bohls v. Oakes, 75 S.W.3d 473, 479 (Tex.App.--San Antonio 2002, pet. denied).
A plaintiff's lack of standing may be challenged through several procedural devices. Bland,
34 S.W.3d at 554; see also Sneed v. Webre, 465 S.W.3d 169, 176 (Tex. 2015)(lack of standing to
assert statutory claim raised through special exceptions, plea to the jurisdiction, plea in abatement,
motion for summary judgment, and motion to dismiss). Here, Nunez challenged consumer status
through a plea to the jurisdiction.
18
When a plea to the jurisdiction challenges the pleadings, we look to the pleader’s intent,
construe the pleadings liberally in favor of jurisdiction, and accept the allegations in the pleadings
as true to determine if the pleader has alleged sufficient facts to affirmatively demonstrate the trial
court’s jurisdiction to hear the case. Heckman v. Williamson Cty., 369 S.W.3d 137, 150 (Tex.
2012); JNC Land Co., Inc. v. City of El Paso, 479 S.W.3d 903, 907 (Tex.App.--El Paso 2015, pet.
denied). “If the pleadings do not contain sufficient facts to affirmatively demonstrate the trial
court’s jurisdiction but do not affirmatively demonstrate incurable defects in jurisdiction, the issue
is one of pleading sufficiency and the plaintiffs should be afforded the opportunity to amend.”
Texas Dept. of Parks and Wildlife v. Miranda, 133 S.W.3d 217, 226-27 (Tex. 2004). If the
pleadings affirmatively negate the existence of jurisdiction, then a plea to the jurisdiction may be
granted without allowing the plaintiff an opportunity to amend their pleading. Id. at 227.9
Application
We conclude the trial court erred in granting the plea for two reasons. First, taking the
Church’s allegation as true, it alleged consumer status, or at least it could have amended the
petition to state a claim. Second, if the trial court based its decision on the professional services
exemption that Nunez advanced at the hearing, the Church should have also been given an
opportunity to replead its case. That is, nothing about its allegations show that they could not have
amended to properly allege a DTPA claim.
The Church’s Original Petition alleges that Hector Ferrero, without the Church’s
knowledge or authorization, “retained the services” of Nunez who represented himself to be a
notary public, accountant, and advisor to churches. Nunez supposedly “offered” his services to
9
A plea might also challenge the existence of jurisdictional facts, but to do so, Nunez would have had to offer his own
evidence denying a relevant jurisdictional fact. Miranda, 133 S.W.3d at 226. His plea, however, only challenged the
adequacy of the pleadings.
19
perform an internal audit and “legal advice regarding church management and operations.” Based
on that advice, Hector Ferrero allegedly took the actions that he did. The allegations, construed
liberally in the pleaders favor as we must, assert that Hector Ferrero hired Nunez to provide
services. The only missing link is whether the Church retained his services and is the consumer,
as distinct from Hector Ferrero. Nunez seizes on the “without knowledge or authorization from
the Church” to distance the Church from the transaction. But the pleading also attaches a form
that Hector Ferrero filed with the Secretary of State that designates him as the president of the
organization. He was also the pastor. He was at least an apparent agent who could have hired
Nunez on behalf of the Church. Accordingly, if the defect in the pleading is linking Nunez’s
employment to the Church (as distinct from Hector Ferrero, individually), we think the Church
deserved the opportunity to replead.
The same can be said for Nunez’s arguments on the professional services exemption. The
DTPA provides that: “[n]othing in this subchapter shall apply to a claim for damages based on the
rendering of a professional service, the essence of which is the providing of advice, judgment,
opinion, or similar professional skill.” TEX.BUS. & COM.CODE ANN. § 17.49. But this exemption
has a least one exception that might have been invoked here:
(2) a failure to disclose information in violation of Section 17.46(b)(24) [which in
turn makes actionable: ‘failing to disclose information concerning goods or services
which was known at the time of the transaction if such failure to disclose such
information was intended to induce the consumer into a transaction into which the
consumer would not have entered had the information been disclosed’].
TEX.BUS. & COM.CODE ANN. § 17.49.
The essence of the Church’s claim against Nunez is not only that the advice that he gave
was wrong, but that he was not licensed or qualified to provide it. The original articles of
incorporation provide that this non-profit corporation had no members. The meeting minutes state
that Nunez told the congregation that they could elect a new board of directors on a two-thirds vote
20
of the eligible members of the congregation. But the question of who might elect a new board
could well be controlled by the Texas Business Organizations Code. See e.g.
TEX.BUS.ORGS.CODE ANN. § 22.151(a)(allowing for corporations with no members); Id. at
§ 22.107 (for such entities, an amendment to the corporation's certificate of formation for any
fundamental actions requires a vote by the board of directors); Id. at § 22.164(b)(3)(setting vote
at majority of directors in office); Id. at § 22.206 (in the absence of bylaws or the certificate of
formation to the contrary, “directors other than the initial directors are elected by the board of
directors.”).
On the record before us, the Church might have alleged Nunez’s advice was incorrect, and
more importantly, had he disclosed limitations in his inability to give legal advice, the
congregation might not have been so inclined to act on his advice. It might have pleaded for
damages that are independent of the issues that invoke ecclesiastical abstention (such as any
amount Nunez may have billed the Church). We emphasize, however, that we are limited by the
exceedingly thin record before us. Had the record contained the bylaws, additional information
about Nunez’s qualifications, or his arrangement with the Church, these allegations might well
become untenable. But our task here is only to determine if there is no possible basis for the
Church to replead, and based on this record, we cannot say that it should be denied that opportunity.
We sustain the Church’s first issue.
Nunez No Evidence Motion for Summary Judgment-Fraud
Nunez filed a no evidence motion for summary judgment as to the common law fraud claim
asserted against him. As we understand the motion, Nunez claims that: (1) the Church cannot
produce any evidence that any material misrepresentation was made to the Church, as distinct from
21
Hector Ferrero; and (2) the Church never relied on any representation that was made. The
Church’s second issue challenges the summary judgment based on those arguments.
Standard of Review and Controlling Law
We review a trial court’s decision to grant summary judgment de novo. Travelers Ins. Co.
v. Joachim, 315 S.W.3d 860, 862 (Tex. 2010). A “no evidence” motion requires the moving party
to “state the elements as to which there is no evidence,” and upon doing so, the burden shifts to
the non-movant to produce summary judgment evidence raising a genuine issue of material fact
regarding each element challenged in the motion. TEX.R.CIV.P. 166a(i); see also Wade Oil & Gas,
Inc. v. Telesis Operating Company, Inc., 417 S.W.3d 531, 540 (Tex.App.--El Paso 2013, no pet.).
We review the evidence in the light most favorable to the non-movant, crediting evidence
favorable to that party if reasonable jurors could, and disregarding contrary evidence unless
reasonable jurors could not. See City of Keller v. Wilson, 168 S.W.3d 802, 827 (Tex. 2005);
Johnson v. Brewer & Pritchard, P.C., 73 S.W.3d 193, 208 (Tex. 2002). The non-movant
establishes a genuine issue of material fact by producing more than a scintilla of evidence
regarding the challenged element. King Ranch, Inc. v. Chapman, 118 S.W.3d 742, 751 (Tex.
2003). More than a scintilla of evidence exists when reasonable and fair-minded individuals could
differ in their conclusions. Id. The non-movant fails in their burden when the evidence is so weak
as to do no more than create a mere surmise or suspicion of material fact. Wade Oil & Gas, 417
S.W.3d at 540; Matter of Estate of Zerboni, 556 S.W.3d 482, 485–86 (Tex.App.--El Paso 2018,
no pet.).
For a fraudulent misrepresentation claim, the Church was obligated to plead and prove that:
(1) a material representation was made; (2) that was false; (3) that was made knowingly or with
reckless disregard for its truth or falsity; (4) that was made with the intention that it be acted upon
22
by the other party; (5) it was in fact relied upon by the other party; and (6) damaged the other party.
Chico Auto Parts & Serv., Inc. v. Crockett, 512 S.W.3d 560, 575-76 (Tex.App.--El Paso 2017,
pet. denied); see also Italian Cowboy Partners, Ltd. v. Prudential Ins. Co. of Am., 341 S.W.3d 323,
337 (Tex. 2011)(identifying the six elements of fraud).
Application
Based on the no evidence motion, the only elements that Nunez challenged were that (1)
he made a misrepresentation to the Church that (2) the Church relied on. The essence of his
argument is that the representations were made to Hector Ferrero, who as a defendant himself, did
not rely on a representation that he already knew to be false.
The Church’s response includes two affidavits--one from Armando Oaxaca and one from
Carmen Yanez. The affidavits themselves do not set forth any facts germane to the conduct of the
parties or the claims made. Instead, Armando Oaxaca only states that he served in various
capacities in the Church, including as a board member and treasurer, and he then authenticates
three attached documents: (1) the original articles of incorporation from 1994, (2) a Spanish
language document, and (3) a bank statement for the month of January 2014.
The affidavit of Carmen Yanez also swore that she was involved with the Church in various
capacities, including as a member of the board of directors for several years, and as its president
since her appointment on February 8, 2014. But substantively, all that affidavit does is attach
several records as authentic copies of records that attorney Soto has in his file. These records
include:
(1) a letter dated January 3, 2013 from Carmen Yanez, Armando Oaxaca, and Arturo
Serrano to Hector Ferrero asking for the whereabouts of a filing cabinet with the Church’s
corporate records.
(2) a January 16, 2014 letter from Hector Ferrero to Carmen Yanez, Armando Oaxaca, and
Arturo Serrano informing them that they did not constitute the board, that a new election
would soon be held, and declining to let them see the records.
23
(3) a signed letter by Hector Ferrero to attorney Soto on January 28, 2014, attaching: (a) a
January 28, 2014 print out from the Texas Secretary of State’s Office (and showing only
Hector Ferrero, Rosa Ferrero, and Armando Oaxaca as officers and directors); (b) a
franchise Tax Account Status showing Hector Ferrero as the agent of service; and (c) the
January 18, 2014 meeting minutes.
Nunez urges on appeal that the Church’s response in part relies on allegations made in
pleadings, and indeed, pleadings are not evidence. Hidalgo v. Sur. Sav. & Loan Ass'n, 462 S.W.2d
540, 545 (Tex. 1971). Accordingly, we look only to the evidence attached to the Church’s response
and not its petition.
Some of the defendant/appellees also urged below that many of the documents attached to
the Church’s response are replete with hearsay to which there is no exception. And while several
evidentiary objections might apply to the attachments, the trial court never ruled on any specific
objection below. Summary judgment proceedings use the rules of error preservation applicable
during trial. TEX.R.APP.P. 33.1(a); Mansions in the Forest, L.P. v. Montgomery County, 365
S.W.3d 314, 317-18 (Tex. 2012)(per curiam). To preserve a complaint for appellate review: (1) a
party must complain to the trial court by way of a timely request, objection, or motion; and (2) the
trial court must rule or refuse to rule on the request, objection, or motion. TEX.R.APP.P. 33.1(a);
Mansions in the Forest, L.P., 365 S.W.3d at 317. Thus, in a summary judgment proceeding, a
party asserting evidentiary objections should obtain a written ruling at, before, or very near the
time the trial court rules on the motion for summary judgment or risk waiver. See TEX.R.APP.P.
33.1(a); Dolcefino v. Randolph, 19 S.W.3d 906, 926 (Tex.App.--Houston [14th Dist.] 2000, pet.
denied). Because there was no ruling on any objection to the evidence below, we are constrained
to accept the attached exhibits at face value. See also TEX.R.EVID. 802 (“Inadmissible hearsay
admitted without objection may not be denied probative value merely because it is hearsay.”).10
10
One exception, however, is the multi-page document that is entirely in Spanish. The Rules of Evidence provide a
procedure for admitting documents in another language. See TEX.R.EVID. 1009 (setting out procedure for admitting
24
Taking the exhibits at face value raises at least a scintilla of evidence that Nunez made
certain representations to the Church. First, the various exhibits show that at the time of the
January 18, 2014 meeting, Hector Ferrero and his wife, Rosa Ferrero, were both officers of the
Church, as well as directors. A communication to them would be a communication to the Church.
At the meeting, Nunez made essentially four representations: (1) certain documents filed with the
State of Texas reflect only three officers, who were also directors (Hector Ferrero, Rosa Ferrero,
and Armando Oaxaca); (2) certain documents filed with the State of Texas show that Hector
Ferrero is the registered agent of service; (3) as per the articles of incorporation, only members in
good standing with the Church are eligible to vote for new officers and directors; and (4) that a
two-thirds majority of eligible members can vote in a new board. Setting aside the issue of whether
any of these representations were false, or that Nunez knew them to be false (as those elements are
not raised in the summary judgment), they were at least communicated to two members identified
as board members of the Church on January 18, 2014.
The Church also raised some evidence of reliance on the statements. The January 18, 2014
meeting minutes recite that Nunez was hired on January 12, 2014 to start an internal audit of the
Church “since there were no official documents available” for the corporation. On January 16,
2014, Hector Ferrero authored a letter to Carmen Yanez, Armando Oaxaca, and Arturo Serrano
that recited each of the four representations that Nunez is being sued over. The same claimed
representations were repeated at the January 18, 2014 meeting, and the congregation voted at that
meeting to authorize a further response letter and ouster of Carmen Yanez, Armando Oaxaca, and
translation of document in a foreign language). This Court does not act as a translator for litigants. See Texas Tech
Univ. Health Science Ctr. v. Lozano, 570 S.W.3d 740, 747 (Tex.App.--El Paso 2018, pet. denied); Lacoma v. Canto,
236 S.W. 1013, 1014 (Tex.App.--El Paso 1922, no writ). This is a longstanding rule that should be of no surprise to
litigants. See Sartor v. Bolinger, 59 Tex. 411, 413 (1883).
25
Arturo Serrano. Based on these documents, there is at least a scintilla of evidence of reliance. We
sustain issue two as it relates to the fraud allegation against Nunez.
Nunez Affirmative Motion for Summary Judgment-Conversion
As to the conversion allegation, Nunez filed an affirmative motion for summary judgment
under TEX.R.CIV.P. 166a(b). Part of the Church’s second issue challenges the trial court’s order
granting that motion.
Standard of Review and Controlling Law
A traditional summary judgment is proper when the movant establishes that no genuine
issues of material fact exist, and that the movant is entitled to judgment as a matter of law. BCCA
Appeal Group, Inc. v. City of Houston, 496 S.W.3d 1, 7 (Tex. 2016). To be entitled to summary
judgment, a defendant must conclusively negate at least one essential element of the plaintiff's
cause of action or establish all elements of an affirmative defense as a matter of law. Chau v.
Riddle, 254 S.W.3d 453, 455 (Tex. 2008).
Once the defendant produces evidence sufficient to establish the right to summary
judgment, the burden then shifts to the plaintiff to come forward with competent controverting
evidence that raises a fact issue as to each challenged element of the plaintiff's claim or one element
of the defendant's affirmative defense. Amedisys, Inc. v. Kingwood Home Health Care, LLC, 437
S.W.3d 507, 511 (Tex. 2014). If the movant does not satisfy its initial burden, however, the burden
does not shift, and the non-movant need not respond or present any evidence. Id. at 511-12; see
also McConnell v. Southside Indep. Sch. Dist., 858 S.W.2d 337, 343 (Tex. 1993)(“the non-
movant's failure to answer or respond cannot supply by default the summary judgment proof
necessary to establish the movant's right” to judgment).
26
Application
Despite the standards for traditional motions for summary judgment, Nunez presented no
evidence in support his traditional motion for summary judgment. Instead, the motion is premised
solely on the Church’s pleadings. The motion argues that the conversion claim must fail because
“the property converted was not personal property[.]” It also asserts that the petition does not
allege that Nunez “exercised dominion over its property.” Rather, at most Hector Ferrero relied
on the advice of Nunez to wrongfully exercise dominion and control over Church property.
We are mindful of the general rule that a “summary judgment should not be based on a
pleading deficiency that could be cured by amendment.” In Interest of B.I.V., 870 S.W.2d 12, 13-
14 (Tex. 1994); Massey v. Armco Steel Co., 652 S.W.2d 932, 934 (Tex. 1983)(holding that whether
pleadings fail to state a cause of action may not be resolved by summary judgment). Instead, a
trial court should grant summary judgment dismissing a plaintiff's claims based on a pleading
deficiency, only after giving the plaintiff the opportunity to amend the pleadings as with a special
exception. Friesenhahn v. Ryan, 960 S.W.2d 656, 658 (Tex. 1998).
Nonetheless, a nonmovant waives that complaint if the nonmovant fails to raise the
complaint in the trial court. See San Jacinto River Auth. v. Duke, 783 S.W.2d 209, 210 (Tex.
1990)(where plaintiff argued for the first time on appeal that the defendant should have challenged
his pleadings through a special exception, which would have given him the opportunity to amend
his pleadings in order to state an actionable claim against the defendant, appellate court erred by
reversing the trial court's decision on that basis); Warwick Towers Council of Co-Owners v. Park
Warwick, L.P., 298 S.W.3d 436, 444 (Tex.App.--Houston [14th Dist.] 2009, no pet.)(“A
nonmovant waives a complaint that summary judgment improperly was granted on the pleadings
by failing to raise it.”); see also TEX.R.CIV.P. 166a(c) (“Issues not expressly presented to the trial
27
court by written motion, answer or other response shall not be considered on appeal as grounds for
reversal” in a summary judgment proceeding). In this case, the Church failed to raise any such
complaint in the trial court, and never asked for the right to amend its pleadings to state a valid
conversion claim against Nunez. Accordingly, we conclude that any complaint that the trial court
improperly granted summary judgment on the pleadings without an opportunity to amend has been
waived. See Chico, 512 S.W.3d at 575.
Turning to the substance of the argument based on the pleadings, we would reject Nunez’s
first argument that “the property converted was not personal property[.]” The Church’s pleading
is broad enough to encompass exclusion from the premises, which would necessarily include its
furnishings. We agree, however, with Nunez’s second argument that the Church’s pleading does
not claim that he exercised dominion over any Church property. Conversion is the unauthorized
and unlawful exercise of dominion and control over another's personal property which is to the
exclusion of, or inconsistent with, the owner's rights. Waisath v. Lack's Stores, Inc., 474 S.W.2d
444, 446 (Tex. 1971); Almance v. Shipley Bros., Inc., 247 S.W.3d 252, 254 (Tex.App.--El Paso
2007, no pet.). The Church’s pleading does not claim that Nunez did this. Rather, it affirmatively
states that Hector Ferrero did.
At most, the Church falls back on its claim that Hector Ferrero relied on Nunez’s advice.
But that by itself is not enough to hold Nunez liable for the conversion claim. When a person is
not the one who actually takes control over the property, the plaintiff would need to assert some
ancillary theory to tie them to the tort. Theories more typically employed for that purpose include
conspiracy, joint enterprise, or possibly aiding and abetting. Tri v. J.T.T., 162 S.W.3d 552, 556
(Tex. 2005)(setting out elements of conspiracy); St. Joseph Hosp. v. Wolff, 94 S.W.3d 513, 534–
35 (Tex. 2002)(setting out elements of joint venture); Juhl v. Airington, 936 S.W.2d 640, 644 (Tex.
28
1996)(aiding and abetting).11 Yet each of those theories have specific elements that are lacking
here. Firestone Steel Prods. Co. v. Barajas, 927 S.W.2d 608, 614 (Tex. 1996)(actionable civil
conspiracy exists only as to those parties who are aware of the intended harm or proposed wrongful
conduct at the outset of the combination or agreement); Wolff, 94 S.W.3d at 534 (joint enterprise
includes element of express or implied agreement to share profits and mutual right of control);
Juhl, 936 S.W.2d at 644 (aiding and abetting would require the actor, with unlawful intent, to give
substantial assistance and encouragement to a wrongdoer in a tortious act). In sum, the Church
neither pleaded, nor presented evidence that Nunez himself exercised any dominion or control over
Church property. We overrule Issue Two as to the conversion claim asserted against Nunez.
CONCLUSION
We sustain the Church’s first issue as to Nunez and remand the DTPA claims. We sustain
the second issue in part and reverse the summary judgment only as to the fraud claim asserted
against Nunez. We overrule the second issue in part and affirm the trial court’s order as it pertains
to the conversion claim against Nunez. We dismiss all the claims against Hector Ferrero, Rosa
Ferrero, and Sanchez for want of jurisdiction. We accordingly overrule the Church’s issues three,
and four as moot.
November 25, 2019 ANN CRAWFORD McCLURE, Senior Judge
Before Rodriguez, J., Palafox J., and McClure, Senior Judge
McClure, Senior Judge (Sitting by Assignment)
11
The Texas Supreme Court, however, has recently cautioned that it has never expressly recognized a distinct aiding
and abetting claim. Instead, it has only resolved arguments that assumed such a claim’s existence. First United
Pentecostal Church of Beaumont v. Parker, 514 S.W.3d 214, 225 (Tex. 2017).
29