paul-poong-young-kim-andrew-keeyoung-chung-jennifer-e-chung-nam-sik ( 2010 )

Opinion issued June 3, 2010.

In The

Court of Appeals

For The

First District of Texas

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NO. 01-08-00970-CV

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Paul Poong Young Kim, Andrew Keeyoung Chung, Jennifer E. Chung, Nam Sik Kim, Mark H. Kim, Juri Lee, Sonia Heasook Kim, Jin-bum Hur, and Soon Ja Hur, Appellants

V.

Board of Trustees of the Korean Christian Church of Houston, Appellee

On Appeal from the 165th

Harris County, Texas

Trial Court Case No. 2007-70842

MEMORANDUM OPINION

Appellants, Paul Poong Young Kim, Andrew Keeyoung Chung, Jennifer E. Chung, Nam Sik Kim, Mark H. Kim, Juri Lee, Sonia Heasook Kim, Jin Bum Hur and Soon Ja Hur (collectively “the parishioners”), appeal a judgment  rendered in favor of appellees, the Board of Trustees of the Korean Christian Church of Houston (“the Board”).  After consolidating multiple causes, the trial court adopted the findings of fact and conclusions of law from an appointed Special Master, rendered judgment in favor of the Board, and ordered the parishioners to pay attorneys fees and costs. In two issues, the parishioners contend the trial court erred by (1) making an erroneous conclusion of law regarding the Korean Christian Church of Houston Constitution’s quorum requirement, and (2) entering the permanent injunction without an evidentiary hearing. We conclude the quorum requirement was met and the hearing before the Special Master satisfied the hearing requirement for the injunction.

We affirm.

Background

           The Korean Christian Church of Houston (“KCCH” or the “church”)  is a Texas 501(c)(3) non-profit corporation, established in 1978 to serve the religious needs of the Houston Korean community.  In 1998, Dae Woo Cho was elected as an elder on the Board.  In 2003 and 2006, Sung Ho Cho, Kyung Han Kwon, Tae Suk Chung, and Hong Baei Kim were elected as elders.  These elders constituted all of the members of the duly elected KCCH Board, other than the senior pastor.

Chul Hong Park became the senior pastor at KCCH in December 2006, replacing retiring senior pastor Ichan Chung.  Once Park was initiated as the senior pastor, under the KCCH Constitution, he became the sixth member of the KCCH Board and served as the acting chairman.

In September 2007, parishioner Paul Poong Young Kim, who at the time was a deacon of the church, made requests for the Church’s financial records.  Park, Associate Pastor Sueng Woong Ok, and the parishioners later accused the Board of financial impropriety.

On November 4, 2007, a meeting of the Board was called.  Park did not attend and the Board appointed a temporary chairman pursuant to Article 40 of the KCCH Constitution.  Through their votes, the Board adopted a resolution terminating Ok from his position as associate pastor.   

On November 11, Park announced to the General Assembly that he had suspended the Elders and that they no longer constituted the other members of the Board. He did this without the approval of the Board or the church’s Council of Deacons or General Assembly.  The same day, he unilaterally appointed five new members to the Board.  The trial court later found Park’s actions invalid and unlawful under the KCCH Constitution and found that Park’s actions did not displace the duly elected Board. Also on November 11, the Board, in absence of Park, unanimously resolved to terminate Park as Chairman of the Board and resolved to suspend Park. 

The next day, on November 12, Park and parishioner Jin-Bum Hur (“Hur”) filed a 9.01 report with the Texas Secretary of State and changed the registered agent and registered agent’s address for KCCH.  The trial court later held that Park and Hur lacked authority to change KCCH’s registered agent and registered address.

The Board quickly brought a declaratory judgment action against Park and Ok, seeking a temporary restraining order against Park and Ok in cause number 2007-70842 in the 269th District Court.  In its petition, the Board stated that Park and Ok had been terminated according to church procedure and alleged that Park and Ok’s refusal to relinquish their duties resulted in physical altercations during church services. Park and Ok filed counter-claims against the Board claiming it breached employment agreements.  The 269th District Court granted a temporary injunction. In response to the injunction, Howard Chong, Andrew Chung, and Jennifer Chung each filed defamation suits against the Board in cause number 2007-71102 and cause number 2007-71113.   The parishioners also filed a petition for receivership of the KCCH and for injunctive relief in cause number 2007-77264 in the 190th District Court, which was heard and denied by the 80th District Court. 

Nine days after the first lawsuit was filed, Park held a General Assembly meeting.  The court later determined that the meeting was not properly called and that it had no force and effect under the KCCH Constitution because it was based upon invalid notice and procedure.

In December 2007, Hur opened a bank account in the name of KCCH at Central Bank, and Park led a worship service of former KCCH members at an outside facility. The Board, however, also continued to govern the KCCH.  The Board, acting in the absence of Park, provided notice of its disciplinary action decisions with respect to over 20 KCCH members to the Council of Deacons.

In January, a notice issued that the Council of Deacons would hold a meeting on January 27.  On January 27, the Council of Deacons held a meeting and unanimously voted to terminate Park or, alternatively, to accept his resignation. 

After notice was provided, the General Assembly had an extraordinary meeting in February 2008 for the purpose of terminating Park or alternatively, accepting his resignation.  The General Assembly made an affirmative vote to terminate Park or, alternatively, to accept his resignation.  At the meeting, the General Assembly also approved the 2008 KCCH budget.   

Each cause number related to this litigation was transferred to the 165th District Court, which subsequently consolidated all matters into cause number 2007-70842.  The parties appeared before the court and the court announced that the matter would be assigned to a Special Master for consideration.  The trial court ordered the Special Master to make findings of fact and conclusions of law and to answer various questions presented by the parties.  All parties submitted numerous exhibits, arguments, and questions to the Special Master. The Special Master presented the parties with her findings of fact and conclusions of law.  The parishioners objected to the findings of fact in their “entirety.”  The parishioners also specifically objected to 12 conclusions of law, requesting modification of these 12 conclusions. 

The trial court adopted the Special Master’s findings of fact and conclusions of law.  The trial court denied all relief sought by the parishioners, noted that the Board properly terminated Park and Ok, and entered a permanent injunction.  In the injunction, the court permanently enjoined the parishioners from certain activities at KCCH.  The court also enjoined Chul Hong Park and Seung Woong Ok from entering KCCH premises or property, and from performing pastoral duties at KCCH. Finally, the court enjoined the parishioners from entering KCCH premises or property, as well as from attending services at KCCH, from participating in church administrative duties and from identifying themselves as members of KCCH.  The trial court ordered the parishioners to pay attorney’s fees and costs. This appeal followed.

Special Master’s Conclusions of Law

The parishioners contend the trial court erred because it adopted an erroneous conclusion of law from the Special Master.  Specifically, the parishioners assert that without Park’s presence, the KCCH Board could not suspend Park’s duties and could not terminate Park.  Furthermore, the parishioners assert that any act taken without Park’s presence was an illegal ultra vires act.

A.      Standard of Review

          “Appellate courts review a trial court’s conclusions of law as a legal question.”  BMC Software Belgium, N.V. v. Marchand, 83 S.W.3d 789, 794 (Tex. 2002).  “The appellant may not challenge a trial court’s conclusions of law for factual insufficiency; however, the reviewing court may review the trial court’s legal conclusions drawn from the facts to determine their correctness.”  Id. “If the reviewing court determines a conclusion of law is erroneous, but the trial court rendered the proper judgment, the erroneous conclusion of law does not require reversal.”  Id.; see also In re J.J.L.-P., 256 S.W.3d 363, 376 (Tex. App.—San Antonio 2008, no pet.) (observing that erroneous conclusions of law need not prompt reversal if judgment can be sustained on any legal theory supported by evidence).

          B.      Analysis

The parishioners contend the trial court erroneously concluded that the Board could act, suspend, or terminate Park without his presence on the Board. The court, through the Special Master, analyzed the KCCH Constitution.  The KCCH Constitution includes the following provisions:

ARTICLE 38: When the pastor is found incapable of performing his duty due to breach of covenant embodied either in the Statement of Faith as set forth in Part 2 of this Constitution or oath of office offered in his installment ceremony, for health reasons, or due to his misconduct of a serious nature, a resolution shall be adopted to remove him from office or suspend his duty with 2/3 or more consenting votes of each of the Board, the Counsel and the General Assembly.

. . . .

Article 40:  Structure of the Board of Elders (the Board)—the Board is composed of senior pastor and active elders of the church.  The senior pastor serves as the chairman and the Board names a secretary for recordings and liaison.  The chairman and the majority of the Board members constitute quorum for meetings. In case the chairman is on leave, a temporary chairman shall be elected from among the Board members.

. . . .

Article 64:  The Church disciplinary actions consist of four types: reprimand, suspension, dismissal and excommunication, and ranges of the disciplines are as following. Disciplinary matters shall be investigated by the Board and the Board’s decision shall be notified to the subject and the Council.

          1.  Reprimand: Self restraint for a period of at least one month.

          2.  Suspension: Loss of position held, for up to one year.

          3.  Dismissal: Forfeiture of rights to hold any office.

4.  Excommunication: Removal of the name from the Church

roster.

. . . .

Addendum, Article 2:  In the course of enactment for any particulars not covered in this Constitution, customary practices take place of the Constitution.  For those cases [where] the customary practices are ambiguous[,] the Board and the Council may decide on its disposition.

The trial court adopted the following pertinent conclusions of law of the Special Master, who based her analysis on the Constitution:

8.       The actions of the [Board] on November 11, 2007, to terminate Senior Pastor Park as Chairman of the [Board] and to suspend Senior Pastor Park were proper pursuant to Article 38 of the Constitution and Article 64 of the Constitution.

. . . .

14.     The [Board] is empowered to unilaterally discipline members of the church pursuant to Article 64 of the Constitution.

          Article 64 does not require progressive discipline within the four categories . . . .

15.     The discipline of members, in December 2007, by the [Board], which was duly elected and conducting business in absence of a senior pastor, was proper pursuant to Article 64 of the Constitution.

16.     The actions on January 6, 2008, of the [Board] were proper under the Constitution.

. . . .

20.     Senior Pastor Park’s termination as Pastor of KCCH became effective February 10, 2008.

The record and the KCCH Constitution support the trial court’s findings and conclusions.  First, as the trial court concluded, the board was not required to meet to terminate Park.  Article 38 controls termination and suspension of a pastor under the KCCH Constitution.  Article 38 does not refer to requirements of a quorum nor does it require the Board to meet to raise and consent to a resolution to terminate or suspend a pastor. Rather, Article 38 points out that to terminate a pastor or to suspend his duties, a resolution must be raised by the Board, and two-thirds, or four out of the six members, must consent to the resolution through a consenting vote.  After two-thirds of the Board consent, two-thirds of the Council of Deacons and then two-thirds of the General Assembly must approve the resolution before the Pastor is considered terminated under the KCCH Constitution. 

This process outlined in Article 38 was followed by the Board, the Counsel of Deacons, and the General Assembly.  Five of the six Board members passed a resolution for the permanent termination of Park.  The Council of Deacons unanimously voted to pass the resolution to terminate Park.  Finally, the General Assembly affirmatively voted by more than two-thirds to terminate Park.  We conclude that the Board was not required by the Constitution to hold a meeting to terminate Park, and that the Board and KCCH properly followed the procedures outlined in Article 38 when it terminated Park.  Park’s termination was also consistent with Article 64, which, without reference to a meeting requirement, allows the Board to discipline members of the church, up to and including dismissal and excommunication from the church.

Second, contrary to the parishioners’ assertions, the Board reached a quorum once they appointed a temporary chairman because the KCCH Constitution allowed them to appoint a temporary chairman when Park was on “leave” from the meetings.  Under Article 40 of the KCCH Constitution, if the permanent chairman is on “leave,” a quorum may be reached with a temporary chairman that shall be elected from among the Board members.  Although neither the Constitution nor the Operating Rules define “leave,” Article 26.3 indicates that “leave” does not just refer to a self-imposed leave of absence, but can also refer to situations in which the Board has suspended a pastor.   Article 26.3 allows the Board to place an elder on a “leave of absence” as a disciplinary action for failing to behave virtuously.  Article 26.3 states,

When an elder fails to behave virtuously on behalf of the Church, fails to meet the provisions of qualification as set forth in the Article 25, or wishes not to serve in active duty, the Board shall decide for resignation or leave of absence for a period of time.  The leave is limited to one year in length and can be repeated no more than twice.

Article 26.3 shows that one meaning of “leave” includes a leave of absence imposed by the Board.  Furthermore, Article 2 of the Addendum notes that when “particulars” are “not covered in this Constitution, customary practices take place of the Constitution,” and if the “customary practices are ambiguous, the Board and the Council may decide” on the disposition of the matter.  We conclude the trial court was correct in determining that “leave,” as found in Article 40, may include situations in which the Board has unilaterally resolved to terminate or place a senior pastor on a leave of absence.

The record shows that the Board unilaterally resolved to suspend all of Park’s duties, including his chairmanship of the Board, and that five of the six Board members consented to the resolution through their votes.  Five members constitute over two-thirds of the Board.  Once two-thirds of the Board voted, Park was properly placed on “leave.”  With Park on leave, pursuant to Article 40, the Board could act at meetings by reaching a quorum through their appointment of a temporary chairman.  We hold that the trial court correctly concluded that Park was properly terminated pursuant to Article 38, and that the quorum was met pursuant to Article 40 through the Board’s appointment of a temporary chairman. See BMC Software, 83 S.W.3d at 794. 

          We overrule the first issue.

Permanent Injunction

          In their second issue, the parishioners contend the trial court erred by permanently enjoining them without holding an evidentiary hearing.

A.      Standard of Review

Whether to grant a permanent or temporary injunction is ordinarily within the sound discretion of the trial court and, on appeal, the appellate court will limit its review of the trial court’s action to the question of whether the action constituted a clear abuse of discretion.  Computek Computer & Office Supplies, Inc. v. Walton, 156 S.W.3d 217, 220 (Tex. App.—Dallas 2005, no pet.). Generally, a permanent injunction should not be entered unless the trial court has held a full evidentiary hearing. State v. Gibson’s Distributing Co., 436 S.W.2d 122, 124 (Tex. 1968); cf. Citizens State Bank of Sealy, Tex. v. Caney Investments, 746 S.W.2d 477, 478 (Tex. 1988) (noting it was error to deny right to trial by jury at hearing on permanent injunction).

In this case, the trial court entered the permanent injunction based upon the findings of a Special Master.  The appointment of a Special Master is done in exceptional circumstances when there is good cause.  Tex. R. Civ. P. 171.  Once appointed, the Special Master shall perform all of the duties required of him by the court, shall be under orders of the court, and have such power as a master in chancery has in a court of equity.  See id. The Special Master may require the production of evidence, rule on the admissibility of evidence, and may examine witnesses.  Id.  When requested by a party, the Special Master shall make a record of the evidence offered and excluded in the same manner as provided for a court sitting in the trial of a case.  Id.  The court may confirm, modify, correct, reject, reverse, or recommit the Special Master’s report, after it is filed, as the Court may deem proper and necessary in the particular circumstances of the case.  See id. 

If no proper objection is made to the Special Master’s report before the trial court adopts it, the report becomes conclusive on the issues considered by the Special Master.  Lesikar v. Moon, 237 S.W.3d 361, 371 (Tex. App.—Houston [14th Dist.] 2007, pet. denied); Young v. Young, 854 S.W.2d 698, 701 (Tex. App.—Dallas 1993, writ denied); Owens-Corning Fiberglas Corp. v. Caldwell, 830 S.W.2d 622, 625 (Tex. App.—Houston [1st Dist.] 1991, orig. proceeding); Minnich v. Jones, 799 S.W.2d 327, 328 (Tex. App.—Texarkana 1990, no writ).  It is the burden of the party dissatisfied with the Special Master’s report to make specific objections to the report, before the court adopts the report.  Lesikar, 237 S.W.3d at 371; Novotny v. Novotny, 665 S.W.2d 171, 173 (Tex. App.—Houston [1st Dist.] 1984, writ dism’d).  To the extent the Special Master’s report is challenged by exceptions, the Special Master’s report is not binding and the contested fact issues are to be tried de novo before the court if a jury has not been requested, or before a jury if one has been requested.  Lesikar, 237 S.W.3d at 371.  Specific objections to the Special Master’s report are timely if made before the trial court adopts the Special Master’s report.  Young, 854 S.W.2d at 701 n.6. 

B.      Analysis

          In the court’s final judgment, it adopted the Special Master’s findings of fact and conclusions of law and entered the findings and conclusions as the court’s findings of fact and conclusions of law. Based on the Special Master’s findings and conclusions, it then permanently enjoined Park, Ok, and the parishioners, from certain specified activities related to the KCCH Church.

          The record shows that the parishioners made only a general objection to the Special Master’s findings of fact.  They stated, “[We] object to the Special Master’s Findings of Fact, Conclusions of Law, and Answers to questions Posed by the Parties in their entirety . . . .”  On the other hand, they made specific objections to 12 of the Special Master’s conclusions of law.  Because they made only a general objection to the findings of fact, the objection by the parishioners was insufficient to advise the court of a fact issue that would require an evidentiary hearing.   See Lesikar, 237 S.W.3d at 371 (“It is the dissatisfied party’s burden to make specific objections before the report is adopted by the court.”); Campbell v. C.D. Payne & Geldermann Sec., Inc., 894 S.W.2d 411, 425 (Tex. App.—Amarillo 1995, writ denied) (characterizing objection to “charge in its entirety” as general objection).

Without a proper objection to any of the Special Master’s findings of fact, we conclude the findings became conclusive when the trial court adopted them, and that there were no longer any disputed factual matters once the court adopted the findings.  Although the general rule is that a court must hold an evidentiary hearing before issuing a permanent injunction, when there is an agreed statement of facts, and the trial court is not called upon to resolve any disputed factual matters, no evidentiary hearing is required.  Int’l Union v. General Motors Corp., 104 S.W.3d 126, 129 (Tex. App.—Fort Worth 2003, no pet.).  Instead, the trial court simply renders judgment as a matter of law, based upon the agreed facts.  Id.  (citing Harris County Appraisal Dist. v. Transam. Container Leasing Inc., 920 S.W.2d 678, 680 (Tex. App.—Houston [1st Dist.] 1995, writ denied) (holding that sole issue on appeal from trial on agreed facts is whether trial court properly applied law to agreed facts)).  Because there were no disputed facts, we conclude the trial court did not abuse its discretion by issuing the permanent injunction without holding an evidentiary hearing.  See Lesikar, 237 S.W.3d at 374–75; Computek Computer, 156 S.W.3d at 220.

We overrule the second issue.

Conclusion

          We affirm the judgment of the trial court.

                                                                             Elsa Alcala

                                                                             Justice

Panel consists of Justices Jennings, Alcala, and Massengale.