Opinion
NO. 14-19-00594-CV
03-04-2021
SCOTT MOSBY, Appellant v. DEACON EDWARD KLEINGUETL AND THE ARCHDIOCESE OF GALVESTON-HOUSTON, Appellees
On Appeal from the 11th District Court Harris County, Texas
Trial Court Cause No. 2018-91452
MEMORANDUM OPINION
Appellant Scott Mosby sued Deacon Edward Kleinguetl and the Archdiocese of Galveston-Houston (the "Archdiocese") (together with Kleinguetl, "Appellees"), asserting Kleinguetl's counseling sessions with Mosby's ex-wife Cynthia devolved into a "personal relationship" that culminated in Mosby's and Cynthia's divorce. In their pleas to the jurisdiction, Appellees argued that Mosby's claims were barred by the ecclesiastical abstention doctrine. The trial court granted Appellees' pleas and dismissed Mosby's claims. For the reasons below, we affirm the trial court's judgment granting Appellees' pleas to the jurisdiction.
BACKGROUND
Mosby sued Appellees in December 2018 and amended his petition twice. Mosby's second amended petition includes the following allegations:
• Mosby and his ex-wife, Cynthia, were active parishioners in St. Martha's Roman Catholic Church for approximately 15 years.Based on these allegations, Mosby asserted claims against both Appellees for (1) intentional infliction of emotional distress; (2) alienation of emotional and sexual affection; (3) breach of fiduciary duty; and (4) alienation of Mosby's relationship with his two sons. Mosby also asserted a negligence claim against the Archdiocese based on its training and supervision of Kleinguetl as well as a negligent counseling claim against Kleinguetl.
• Mosby developed "an extremely close personal friendship and tight spiritual bond" with Kleinguetl, a deacon in the Roman Catholic Church.
• The Archdiocese held Kleinguetl "out as having the skill and expertise of a marriage counselor to provide those types of services for congregants and those in the community."
• Mosby "sought guidance" from Kleinguetl with respect to his marriage with Cynthia but Kleinguetl refused and told Mosby "he could not provide family and marriage counseling [to Mosby] . . . because he was a friend to [Mosby] and Cynthia."
• "At the same time [Mosby] noticed an unusual closeness between Kleinguetl and Cynthia."
• Mosby "began to suspect that Kleinguetl and Cynthia were having more than family and marriage counseling sessions."
• Mosby eventually learned "that Kleinguetl was having a 'relationship' with [Cynthia]. Cynthia has since filed for divorce from [Mosby]."
• Mosby subsequently learned the Archdiocese was "fully aware of issues relating to Kleinguetl's performance and inappropriate relationships with others while being a deacon."
• "The Archdiocese was and is now aware that Kleinguetl was having a personal relationship with Cynthia, while acting for and on behalf of the Archdiocese."
St. Martha's Roman Catholic Church is one of the parishes within the Archdiocese.
Appellees each filed identical pleas to the jurisdiction asserting that Mosby's claims were barred by the ecclesiastical abstention doctrine. The trial court granted the Archdiocese's plea in an interlocutory order signed May 16, 2019, and dismissed all of Mosby's claims against the Archdiocese. The trial court granted Kleinguetl's plea in an order signed June 24, 2019, and dismissed all of Mosby's claims against Kleinguetl. Mosby timely appealed.
The trial court granted the Archdiocese's plea to the jurisdiction before Mosby filed his second amended petition. The allegations and claims in Mosby's first and second amended petitions are substantially the same. Appellees did not object to Mosby's filing a second amended pleading and the parties do not address this procedural issue on appeal. Because Appellees' pleas to the jurisdiction were identical, we review the trial court's decision to grant the pleas in light of the allegations and claims in Mosby's second amended petition, which was filed before the trial court granted Kleinguetl's plea.
Because the June 24, 2019 order actually disposed of all remaining claims and parties then before the court, that order was a final judgment for purposes of appeal. See Lehmann v. Har-Con Corp., 39 S.W.3d 191, 192 (Tex. 2001).
ANALYSIS
Mosby raises six issues on appeal. In his first issue, Mosby asserts the trial court "abused its discretion by denying [him] the right to take limited discovery in order to obtain evidence to defeat [Appellees'] Motion to Dismiss for Lack of Jurisdiction." In his other five issues, Mosby challenges the trial court's judgment granting Appellees' pleas to the jurisdiction under varying standards of review.
Specifically, Mosby's second through sixth issues state as follows: (2) legally insufficient evidence supports the trial court's dismissal of Mosby's claims; (3) factually insufficient evidence supports the trial court's dismissal of Mosby's claims; (4) the trial court abused its discretion by granting Appellees' pleas to the jurisdiction; (5) there was insufficient or no evidence that the ecclesiastical abstention doctrine bars Mosby's claims; and (6) the trial court abused its discretion by granting Appellees' pleas even though "affirmative facts were [in] evidence that the Court maintained jurisdiction."
Beginning with Mosby's first issue, his appellate brief does not include any argument or authority addressing the trial court's denial of his request "to take limited discovery". The Texas Rules of Appellate Procedure require that a brief contain a clear and concise argument for the contentions made, with appropriate citations to legal authority and the record. Tex. R. App. P. 38.1(i). We conclude Mosby has waived any alleged error on this point due to inadequate briefing and overrule his first issue. See id.
With respect to Mosby's other five issues, we consider them together as a challenge to the trial court's judgment granting Appellees' pleas to the jurisdiction. To support these issues, Mosby's appellate brief begins with an overview of the ecclesiastical abstention doctrine and argues that the doctrine does not protect "Kleinguetl's preying on women, masqueraded in the form of marriage counseling." The remainder of Mosby's brief addresses only his claims for breach of fiduciary duty (against both Appellees) and negligent counseling (against Kleinguetl); Mosby asserts this court "should allow for the claims of professional malpractice and breach of fiduciary duty to proceed to trial, because courts recognize causes of action for counseling malpractice and breach of fiduciary duty." Mosby's brief does not address the other four claims asserted in his second amended petition. Therefore, we limit our review of the trial court's judgment to Mosby's claims for breach of fiduciary duty and negligent counseling.
I. Standard of Review
We review a trial court's ruling on a plea to the jurisdiction de novo. Westbrook v. Penley, 231 S.W.3d 389, 394 (Tex. 2007); Shannon v. Mem'l Drive Presbyterian Church U.S., 476 S.W.3d 612, 619 (Tex. App.—Houston [14th Dist.] 2015, pet. denied). A party may raise lack of subject matter jurisdiction via a plea to the jurisdiction "when religious-liberty grounds form the basis for the jurisdictional challenge." Westbrook, 231 S.W.3d at 394.
Our review begins with the plaintiff's petition and we determine whether the allegations therein affirmatively show that subject matter jurisdiction exists. Id. at 394-95. We "construe the plaintiff's pleadings liberally, taking all factual assertions as true, and look to the plaintiff's intent." Heckman v. Williamson Cty., 369 S.W.3d 137, 150 (Tex. 2012). If the pleadings contain insufficient factual allegations to affirmatively demonstrate the trial court's jurisdiction but do not affirmatively demonstrate incurable jurisdictional defects, then the plaintiff generally must be given the opportunity to amend. Tex. Dep't of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 226-27 (Tex. 2004); Carmichael v. Tarantino Props., Inc., 604 S.W.3d 469, 474 (Tex. App.—Houston [14th Dist.] 2020, no pet.). But claims that are incurably defective or affirmatively negate the existence of jurisdiction may be dismissed without allowing the plaintiff an opportunity to amend. Tex. A & M Univ. Sys. v. Koseoglu, 233 S.W.3d 835, 840 (Tex. 2007).
We generally analyze jurisdiction separately for each claim. Shannon, 476 S.W.3d at 620. But where, as here, the claims are dependent upon the same set of facts, we need not analyze each claim separately. Id.
II. The Ecclesiastical Abstention Doctrine
The First Amendment to the United States Constitution states: "Congress shall make no law respecting an establishment of Religion, or prohibiting the free exercise thereof." U.S. Const. amend. I, XIV. "The First Amendment is applicable to the states through the Fourteenth Amendment." Masterson v. Diocese of Nw. Tex., 422 S.W.3d 594, 601 (Tex. 2013) (citing Cantwell v. Connecticut, 310 U.S. 296, 303 (1940)).
Pursuant to the First Amendment, government action is not permitted to burden the free exercise of religion by interfering with an individual's observance or practice of a particular faith or by encroaching on a church's ability to manage its internal affairs. See, e.g., Kedroff v. St. Nicholas Cathedral of Russian Orthodox Church in N. Am., 344 U.S. 94, 116 (1952); Westbrook, 231 S.W.3d at 395. Accordingly, the First Amendment "severely circumscribes" the role that civil courts may play in resolving church-related ecclesiastical disputes. Presbyterian Church in the U.S. v. Mary Elizabeth Blue Hull Mem'l Presbyterian Church, 393 U.S. 440, 449 (1969). For example, 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. & Can. v. Milivojevich, 426 U.S. 696, 713-14 (1976). This constitutional limitation is implemented in Texas through the ecclesiastical abstention doctrine. See In re St. Thomas High Sch., 495 S.W.3d 500, 507 (Tex. App.—Houston [14th Dist.] 2016, orig. proceeding); Shannon, 476 S.W.3d at 621.
However, the First Amendment does not necessarily bar all claims that may touch upon religious conduct. Westbrook, 231 S.W.3d at 396. Churches, their congregations, and their hierarchies function within the civil community and, where appropriate, are subject to rules governing property rights, torts, contracts, and criminal conduct. See In re St. Thomas High Sch., 495 S.W.3d at 507; Williams v. Gleason, 26 S.W.3d 54, 59 (Tex. App.—Houston [14th Dist.] 2000, pet. denied). Texas courts decide non-ecclesiastical issues based on the same neutral principles of law applicable to other entities while deferring to religious entities' determinations on ecclesiastical and church policy questions. Masterson, 422 S.W.3d at 605-06; In re St. Thomas High Sch., 495 S.W.3d at 507.
As the Texas Supreme Court noted, the "differences between ecclesiastical and non-ecclesiastical issues will not always be distinct" because many disputes "require courts to analyze church documents and organizational structures to some degree." Masterson, 422 S.W.3d at 606. Therefore, the court must determine whether a particular dispute is "ecclesiastical" or simply a civil law controversy in which a church or church official happens to be involved — a determination made by examining the substance and effect of the plaintiff's petition and the allegations therein. In re St. Thomas High Sch., 495 S.W.3d at 508; Shannon, 476 S.W.3d at 622; see also In re Episcopal Sch. of Dallas, Inc., 556 S.W.3d 347, 356 (Tex. App.—Dallas 2017, orig. proceeding [mand. denied]) ("the key inquiry is whether a judicial resolution will encroach on the institution's governance and affairs"). Applying these standards, courts have addressed a wide variety of disputes involving religious organizations; here, we focus on those analyzing the ecclesiastical abstention doctrine in the counseling context.
In Westbrook v. Penley, Penley (a former parishioner) brought several tort claims against Westbrook, the pastor of her former church, including claims for defamation and professional negligence. 231 S.W.3d at 392-94. Westbrook, a licensed professional counselor, held free marital counseling sessions for couples in the church. Id. at 393. Penley informed Westbrook during one of these sessions that she previously had an extramarital affair and decided to divorce her husband. Id. Thereafter, Westbrook and the church elders composed a letter to the church's congregation concerning Penley's actions and informing the congregation of the church's "three-step disciplinary process". Id. As part of this disciplinary process, the letter "encouraged the congregation to 'break fellowship' with Penley in order to obtain her repentance and restoration to the church body." Id. at 393-94.
On appeal, the supreme court examined whether the First Amendment barred Penley's professional negligence claim against Westbrook. Id. at 394. The court pointed out that Penley's claim was premised on Westbrook's publication of information she told him during a counseling session — a publication "made in the course of the church disciplinary process and communicated by Westbrook pursuant to the requirements of that process." Id. at 402. Concluding these actions "were grounded in religious doctrine", the court stated:
[a]ny civil liability that might attach for Westbrook's violation of a secular duty of confidentiality in this context would in effect impose a fine for his decision to follow the religious disciplinary procedures that his role as pastor required and have a concomitant chilling effect on churches' autonomy to manage their own affairs.Id. The court held that "the secular confidentiality interest Penley's professional-negligence claim advances fails to override the strong constitutional presumption that favors preserving the church's interest in managing its affairs." Id.
In Sanders v. Casa View Baptist Church, 134 F.3d 331 (5th Cir. 1998), the plaintiffs sued the church and one of its ministers, Shelby Baucum, asserting Baucum breached his duties as a marriage counselor by (1) expressing love and affection for the plaintiffs and encouraging them to express those feelings for him, (2) engaging in sexual intercourse with both plaintiffs, and (3) disclosing the plaintiffs' confidences. Id. at 334. Pointing out that he "occasionally discussed scripture in his counseling sessions with the plaintiffs", Baucum argued that the alleged misconduct was not actionable under the First Amendment because it occurred within two inherently ecclesiastical (rather than "purely secular") counseling relationships. Id. at 335.
The Fifth Circuit stated that "the Free Exercise Clause protects religious relationships, including the counseling relationship between a minister and his or her parishioner, primarily by preventing the judicial resolution of ecclesiastical disputes turning on matters of 'religious doctrine or practice.'" Id. at 336 (citing Presbyterian Church in the U.S., 393 U.S. at 449-50). The court held that, for Baucum to "invoke the protection of the First Amendment for conduct taking place within his counseling relationships with the plaintiffs," he was required to "assert that the specific conduct allegedly constituting a breach of his professional and fiduciary duties was rooted in religious belief." Id. at 338. Noting the "obvious truth that the activities complained of by the plaintiffs were not part of [Baucum's] religious beliefs and practices," the court concluded that Baucum was not entitled to judgment as a matter of law on First Amendment grounds. Id.
Similarly, Destefano v. Grabrian, 763 P.2d 275 (Colo. 1988) (en banc), involved a Roman Catholic priest who engaged in an adulterous relationship with a woman to whom he was providing marital counseling. Id. at 279. The woman and her husband asserted tort claims against the priest and his diocese, claiming the priest "induced [the woman] to engage in a sexual relationship during the course, and as a result of, marital counseling." Id. at 277-79, 284. Noting that the defendants did not claim that the priest was motivated by a sincerely held religious belief to engage in an adulterous relationship with his counselee, the Colorado Supreme Court concluded that "[w]hen the alleged wrongdoing of a cleric clearly falls outside the beliefs and doctrine of his religion, he cannot avail himself of the protection afforded by the First Amendment." Id. at 284.
In Hawkins v. Trinity Baptist Church, 30 S.W.3d 446 (Tex. App.—Tyler 2000, no pet.), the court reviewed the trial court's summary judgment on a husband's and wife's claims against a church and its pastor. Id. at 448. The pastor previously had provided marital counseling to both the husband and wife; several months into the counseling sessions, the pastor started having sex with the wife. Id. at 448-49. On appeal, the pastor asserted his actions during the counseling sessions were protected by the First Amendment. Id. at 452.
The court noted that "[t]he First Amendment's respect for religious relationships does not require a minister's counseling relationship with a parishioner to be purely secular in order for a court to review the propriety of the conduct occurring within that relationship." Id. Rejecting the pastor's attempted reliance on the First Amendment, the court held that the pastor "failed to show that his conduct toward [the wife], which meets the definition of sexual exploitation under [Texas Civil Practice and Remedies Code] section 81.001(5), was protected under either constitution, and we hold that it was not." Id.
Chapter 81 of the Texas Civil Practice and Remedies Code governs sexual exploitation by a mental health services provider. See Tex. Civ. Prac. & Rem. Code Ann. §§ 81.001-81.010. This chapter defines "sexual exploitation" as "a pattern, practice, or scheme of conduct, which may include sexual contact, that can reasonably be construed as being for the purposes of sexual arousal or gratification or sexual abuse of any person." Id. § 81.001(5).
Turning to the issue presented here, Appellees argue Mosby's breach of fiduciary duty and negligent counseling claims are barred by the ecclesiastical abstention doctrine. Citing Westbrook, Appellees contend that "[t]he Texas Supreme Court has made clear that claims based on marital counseling services provided by a member of the clergy impinge on a church's ability to manage its affairs."
But this argument overstates Westbrook's holding. Westbrook does not stand for the proposition that the First Amendment categorically bars all claims arising out of church-based marital counseling. Rather, the court's decision in Westbrook hinged on the fact that Westbrook's disclosure of Penley's confidences was "made in the course of the church disciplinary process and communicated by Westbrook pursuant to the requirements of that process." Westbrook, 231 S.W.3d at 402 (emphasis added); see also id. at 404 ("Penley does not question that Westbrook's decision to reveal what she considered confidential information to the church elders was mandated by church doctrine and motivated by Westbrook's religious beliefs."); id. (Westbrook's and the elders' decision to tell church members about Penley's statements "was based on their interpretation of [the Bible's Gospel of] Matthew 18:15-20, an inherently ecclesiastical matter."). Any civil liability for actions pursuant to a church's internal requirements would intrude on the church's autonomy to manage its own affairs as well as its relationships with its pastor and congregation. Id. at 402. Therefore, court interference there would have "impinge[d] upon matters of church governance in violation of the First Amendment." Id. at 405.
Unlike Westbrook, the allegations at issue here do not clearly intrude upon a religious matter or interfere with the Archdiocese's ability to manage its internal affairs. Mosby does not allege that the conduct forming the basis of his claims (i.e., the "family and marriage counseling" Kleinguetl provided to Cynthia) was grounded in religious doctrine or otherwise undertaken pursuant to guidance from the Archdiocese. Instead, Mosby alleges that Kleinguetl was having a "personal relationship" with Cynthia and had a history of "inappropriate relationships with others". These general allegations do not implicate any religious standards or indicate that judicial resolution of this dispute will encroach upon the Archdiocese's internal affairs or religious doctrine. Therefore, they do not affirmatively demonstrate that the underlying dispute is inherently ecclesiastical as necessary to warrant First Amendment protection.
Rather, the facts here are more analogous to those in Sanders, Destefano, and Hawkins, where the plaintiffs' claims were premised on specifically what occurred during the counseling sessions. In those cases, the courts determined the First Amendment did not bar the plaintiffs' claims because the complained-of conduct was clearly outside the bounds of religious belief or doctrine. See Sanders, 134 F.3d at 334, 337-38 (the evidence showed that Baucum expressed love and affection for the plaintiffs and engaged in sexual intercourse with them; this "specific conduct" was not "rooted in religious belief" as necessary to fall within the First Amendment's protections); Destefano, 763 P.2d at 277-79, 284 (allegations that the priest engaged in a sexual relationship during the course of marital counseling "clearly fall[] outside the beliefs and doctrine of his religion"); and Hawkins, 30 S.W.3d at 452 (reverend's "sexual exploitation" of the wife was not protected by the First Amendment).
Similarly here, the foundation of Mosby's breach of fiduciary duty and negligent counseling claims is Kleinguetl's and Cynthia's "counseling relationship" and what occurred within that relationship. Mosby alleges that Kleinguetl and Cynthia developed a "personal" relationship that culminated in Mosby's and Cynthia's divorce. Mosby also alleges Kleinguetl previously had "inappropriate relationships with others while being a deacon." Construing Mosby's allegations liberally and taking them as true, we cannot unequivocally hold that Mosby's pleadings demonstrate an incurable jurisdictional defect.
As we noted above, appellate courts generally must remand a case to afford parties an opportunity to cure jurisdictional defects in their pleadings. See Miranda, 133 S.W.3d at 226-27; Carmichael, 604 S.W.3d at 474. But when a plaintiff has been afforded a reasonable opportunity to amend his pleadings to cure a jurisdictional defect and still fails to allege facts sufficient to establish jurisdiction, dismissal is proper. See Harris Cty. v. Sykes, 136 S.W.3d 635, 639 (Tex. 2004); Robinson v. Alief Indep. Sch. Dist., 298 S.W.3d 321, 328 (Tex. App.—Houston [14th Dist.] 2009, pet. denied).
Here, Mosby had an opportunity to cure the jurisdictional defects and did not do so. After Kleinguetl and the Archdiocese filed their pleas to the jurisdiction, Mosby twice amended his pleadings but failed to present any additional facts sufficient to invoke the trial court's jurisdiction. Mosby is not entitled to an additional opportunity to replead. See Clint Indep. Sch. Dist. v. Marquez, 487 S.W.3d 538, 558 (Tex. 2016) (plaintiffs were not entitled to a remand to replead because they already had an opportunity to amend their pleadings after the school district filed the plea to the jurisdiction); Trant v. Brazos Valley Solid Waste Mgmt. Agency, Inc., 478 S.W.3d 53, 63 (Tex. App.—Houston [14th Dist.] 2015, pet. denied) (plaintiffs were not entitled to an additional opportunity to replead because they amended their petition twice after the defendant filed a plea to the jurisdiction and did not amend their petition after a hearing on the plea).
More importantly, nothing in the trial court record or in the pleadings in this court demonstrates the existence of a fact that would defeat the Appellees' jurisdictional challenge. While Mosby's pleadings may not be incurably defective or affirmatively negate the existence of jurisdiction, he does not articulate how any amendment to his pleadings below would have cured the jurisdictional defects alleged in the pleas to the jurisdiction. Because he has not argued on appeal any facts that could be presented on remand, and because we have determined he waived any alleged error concerning his request for limited discovery, we conclude that Mosby waived any complaint that the trial court should have offered him the opportunity to amend. See Delgado v. River Oaks Police Dep't, No. 02-15-00205-CV, 2016 WL 6900900, at *1 (Tex. App.—Fort Worth Nov. 23, 2016, no pet.) (mem. op.); Austin Indep. Sch. Dist. v. Salinas, No. 03-14-00209-CV, 2016 WL 1566707, at *6 (Tex. App.—Austin Apr. 14, 2016, no pet.) (mem. op.).
We overrule Mosby's challenge to the trial court's judgment granting Appellees' pleas to the jurisdiction.
CONCLUSION
We affirm the trial court's judgment.
/s/ Meagan Hassan
Justice Panel consists of Justices Spain, Hassan, and Poissant.