Shield The Episcopal Diocese of Fort Worth  
Nov. 17, 2009

Appellate court issues stay
in response to Mandamus filing


The Fort Worth Court of Appeals has ordered the suspension of further proceedings in a suit brought against the diocese last April. The stay was issued late on Monday, Nov. 16, in response to a Petition for Writ of Mandamus filed by the diocese on Friday, Nov. 13. The suit is pending before the 141st District Court. The Hon. John P. Chupp is the trial judge.

Monday’s order, issued by the Court of Appeals for the Second District of Texas, says, “The court has considered relators’ [the diocese’s] petition for writ of madamus and motion for stay and is of the tentative opinion that relators are entitled to relief or that a serious question concerning the relief requires further consideration.” The order sets a deadline of 5 p.m. on Monday, Nov. 30, for any response to be filed by parties of interest, who could include Judge Chupp and attorneys Jonathan Nelson and Kathleen Wells. The stay is in effect until the Court of Appeals issues a decision.

Update 1: On Nov. 19 the appellate court granted an unopposed motion filed by the parties of interest to extend the response period until Monday, Dec. 21. The deadline for the diocese to reply was re-set for Jan. 11, 2010. The court's stay of further proceedings will remain in effect until it issues its decision.

Update 2: During the week of Dec. 7, a second motion, asking for a futher extension, was filed on behalf of attorneys Jonathan Nelson and Kathleen Wells. The appellate court granted this second motion, moving the response date forward another four weeks to Jan. 18, 2010. The deadline for the diocese to reply was extended, too, to Feb. 8, 2010. The court's stay continues in effect.

The petition filed Friday in the appellate court is a method of remedying an error of the trial court. In August a Rule 12 motion was filed by attorney Shelby Sharpe on behalf of the diocese, asking the court to prohibit plaintiffs’ attorneys Nelson and Wells from representing any entity named The Episcopal Diocese of Fort Worth or the Corporation of the Episcopal Diocese of Fort Worth and to remove those entities as plaintiffs in the suit. Hearings on the Rule 12 motion were held before Judge Chupp on Sept. 7 and Sept. 16. Judge Chupp ruled on Sept. 16 that Nelson and Wells could not represent the diocese associated with Bishop Jack Leo Iker. He declined, however, to find that there is only one Episcopal Diocese of Fort Worth and one diocesan Corporation, even though the plaintiffs themselves asserted as much in their original filing last April.

Friday’s petition asked the appellate court to order Judge Chupp to grant the defendants’ Rule 12 motion in its original form. The petition summarized the issue with the question, “Do the Plaintiffs’ counsel have authority to bring suit on behalf of the Episcopal Diocese of Fort Worth?” and argued that the plaintiff Diocese and Corporation should be dismissed from the case. Such a conclusion would not end the suit itself, but it would prevent the diocese from appearing to sue itself, a situation which is not supportable in law.

A petition for writ of mandamus (literally, a request for a written command from a higher court) was filed because an ordinary appeal is not an adequate remedy to correct a trial court’s error on a Rule 12 motion. Friday’s petition asked the appellate court to require Judge Chupp to find that Nelson and Wells have no authority to represent the diocese and corporation, but that they may represent the individuals claiming to hold office in those entities. Because they represent a minority segment of the diocese which chose to remain aligned under The Episcopal Church, the petition would clarify the clients’ status as leaders of “the diocesan minority.”

At the request of lead attorney Shelby Sharpe, the petition was prepared for the diocese and the diocesan corporation by Scott A. Brister, who retired in September from Place 9 on the Texas State Supreme Court to return to private practice and has joined Sharpe in the defense of the suit. Justice Brister was appointed to the court in November 2003 and subsequently elected for a full term. A Waco native and graduate of Harvard Law School, he has served on the bench in Texas since 1989. He is co-author of the reference book Texas Pretrial Practice.

  Read the Appellate Court order (pdf) Read the Petition for Writ of Mandamus (PDF)