Fredric N. Eshelman v. True the Vote, Inc., Catherine Engelbrecht, William Engelbrecht OPSEC Group LLC Gregg Phillips The Bopp Law Firm, P.C. James Bopp, Jr. ( 2022 )

Affirmed in Part, Reversed in Part, Remanded, and Opinion filed November 3,
2022.
In the
Fourteenth Court of Appeals
NO. 14-21-00279-CV
FREDRIC N. ESHELMAN, Appellant
V.
TRUE THE VOTE, INC.; CATHERINE ENGELBRECHT; WILLIAM
ENGELBRECHT; OPSEC GROUP LLC; GREGG PHILLIPS; THE BOPP
LAW FIRM, P.C.; AND JAMES BOPP JR., Appellees
On Appeal from the 155th District Court
Austin County, Texas
Trial Court Cause No. 2021v-0015
OPINION
In this appeal from the judgment granting the defendants’ pleas to the
jurisdiction and dismissing the case, charitable donor Fredric N. Eshelman argues
that he has standing to sue a public charity for the return of his donation because the
charity failed to comply with the conditions of his gift. He further maintains that
even if he lacks standing to sue the charity, he has standing to sue the charity’s
employees, officers, agents, and vendors, whom the charity paid using funds he
donated. Five of the defendants challenged the existence of the jurisdictional facts
alleged by Eshelman. Because that challenge was supported by evidence
controverting Eshelman’s allegations, and Eshelman failed to offer any evidence in
response, the trial court properly granted the plea to the jurisdiction of those
defendants. The two remaining defendants challenged only the sufficiency of
Eshelman’s live pleading. Because Eshelman’s pleading alleged facts sufficient to
affirmatively demonstrate the trial court’s jurisdiction, the trial court erred in
granting the jurisdictional pleas of those two defendants. Thus, we affirm in part,
reverse in part, and remand the case for further proceedings.
I. BACKGROUND
Eshelman pleaded that he contributed $2.5 million to True the Vote, Inc.
(“TTV”), to fund their efforts to investigate and litigate alleged voter fraud in the
2020 presidential election, and to do so before election-certification deadlines. He
spoke by phone with TTV’s president Catherine Englebrecht two days after the
election, and based on that conversation, he wired $2 million to TTV. Shortly
thereafter, he wired TTV an additional $500,000.
According to Eshelman, Englebrecht represented that TTV intended to solicit
“whistleblower” testimony, publicize the whistleblowers’ stories, “galvanize
Republican legislative support for voter fraud challenges in key states,” “aggregate
and analyze data to identify patterns of election subversion,” and file federal lawsuits
“in the seven closest battleground states.” The lawsuits were to be filed by TTV’s
general counsel James Bopp Jr. and his law firm, The Bopp Law Firm. Eshelman
alleged that, based upon data to be subpoenaed in those lawsuits, TTV would partner
with OPSEC Group, LLC, and its principal Gregg Phillips to perform data modeling
and statistical analysis to identify potentially fraudulent balloting. Eshelman further
2
alleged that his contributions were made on the condition that the funds were to be
used for the TTV projects concerning the 2020 presidential election that Catherine
Engelbrecht described to Eshelman. These projects came to be referred to as the
“Validate the Vote 2020” initiative. Eshelman pleaded that he expressed his intent
that $1 million of his contribution would be used to fund rewards for whistleblowers,
$1 million “would be used for some combination of communications outreach and
litigation,” and the remaining $500,000 would be used to fund TTV’s Validate the
Vote 2020 initiative in some manner not specifically described. He alleged that TTV
agreed to these conditions.
Despite Eshelman’s requests for information, TTV identified no
whistleblowers. He alleges that TTV filed lawsuits in four states “none of which
cited any substantial evidence” of voter fraud, and that the four lawsuits were quickly
and voluntarily dismissed. When he learned that TTV had dismissed its lawsuits,
Eshelman demanded his money back. TTV offered to return part of the donation if
Eshelman would release his claims against TTV. Eshelman refused.
Eshelman then filed and nonsuited a case in federal court before bringing this
suit in an Austin County district court. Eshelman sued TTV and Catherine
Englebrecht, and, alleging that payments from his conditional contributions were
made to OPSEC, Phillips, Bopp, The Bopp Law Firm, and Catherine’s son William
Engelbrecht, Eshelman sued them as well. Against TTV, Eshelman asserted a claim
for breach of contract, and he sued both TTV and Catherine Engelbrecht for
fraudulent misrepresentation and negligent misrepresentation. Against all of the
defendants, Eshelman asserted claims for conversion and money had and received,
and he requested declaratory relief. He also asked the trial court to appoint receivers
for the organizational defendants TTV, OPSEC, and The Bopp Law Firm.
3
All of the defendants filed pleas to the jurisdiction challenging Eshelman’s
standing. TTV, the Englebrechts, OPSEC, and Phillips challenged the existence of
a key jurisdictional fact alleged by Eshelman, namely, that his contributions to TTV
were in any way conditional. All of the defendants also argued that Eshelman’s
pleading does not, and cannot, show that the trial court has subject-matter
jurisdiction because there is no evidence that Eshelman made his donations through
a “gift instrument” expressly providing that the donations would revert to Eshelman
if TTV failed to use the funds in accordance with his stated conditions. They
maintain that, absent such an express written right of reverter, Eshelman lacks
standing to sue the public charity TTV, and that his claims against the remaining
defendants are similarly barred, being derivative of his claims against TTV.
The trial court granted all of the defendants’ pleas without stating the grounds
and rendered final judgment dismissing Eshelman’s claims without prejudice.
Eshelman appeals the ruling. In two issues, he argues that the trial court erred in
granting the jurisdictional plea of TTV and of the remaining defendants.
II. STANDARD OF REVIEW
Subject-matter jurisdiction can be challenged by a plea to the jurisdiction, and
we review de novo the trial court’s ruling on the plea. Tex. Dep’t. of Parks & Wildlife
v. Miranda, 133 S.W.3d 217, 226 (Tex. 2004).
If the plea challenges the existence of jurisdictional facts, the procedure and
the standard of review mirror those applicable to summary judgments. See id. at 228.
We consider the relevant jurisdictional evidence submitted by the parties, taking as
true all evidence favorable to the plaintiff, indulging all reasonable inferences and
resolving all doubts in the plaintiff’s favor. Id. After the defendant asserts and
supports with evidence that the trial court lacks subject-matter jurisdiction, the
burden shifts to the plaintiff to show that there is a disputed material fact concerning
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jurisdiction. Id. If the jurisdictional evidence, considered in the light most favorable
to the plaintiff, raises at least a question of fact as to the jurisdictional issue, then the
plea must be denied, leaving the matter to be resolved by the factfinder. Id. at 227–
28.
If the plea challenges the plaintiff’s pleading, we determine if the plaintiff
alleged facts affirmatively demonstrating the court’s jurisdiction to hear the case. Id.
at 226. To do so, we construe the pleading liberally in the plaintiff’s favor and
consider the plaintiff’s intent. Id. If the pleading neither contains sufficient facts to
affirmatively demonstrate the trial court’s jurisdiction nor affirmatively
demonstrates incurable jurisdictional defects, the issue is one of pleading
sufficiency, and the plaintiff should be given the opportunity to amend. Id. at 226–
27. But, if the pleading affirmatively negates jurisdiction so that the problem cannot
be cured by amendment, the suit may be dismissed without giving the plaintiff an
opportunity to amend. Id. at 227.
III. CONDITIONAL GIFT
The defendants’ pleas to the jurisdiction primarily focus on issues arising from
Eshelman’s characterization of his contribution to TTV as a “conditional gift.” The
expression “conditional gift” is something of an oxymoron, for “to constitute a gift
inter vivos there must be a delivery of possession of the subject matter of the gift by
the donor to the donee, and a purpose on the part of the donor to vest in the donee,
unconditionally and immediately, the ownership of the property delivered.” Wells v.
Sansing, 151 Tex. 36, 39, 245 S.W.2d 964, 965 (1952) (emphasis added).
5
Unlike true gifts, “conditional gifts,” also referred to as “restricted gifts,”1 are
“premised upon the fulfillment of a condition by the donee.” 38 AM. JUR. 2d Gifts
§ 68. Generally speaking, if the donee performs the condition, then the gift becomes
the donee’s property; if not, then the gift must be returned. Id. To illustrate the
concept, gifts most often characterized as “conditional” under Texas law have been
those made in contemplation of marriage. See, e.g., Curtis v. Anderson, 106 S.W.3d
251, 256 (Tex. App.—Austin 2003, pet. denied); McLain v. Gilliam, 389 S.W.2d
131, 132 (Tex. App.—Eastland 1965, writ ref’d n.r.e.); Shaw v. Christie, 160 S.W.2d
989, 991 (Tex. App.—Beaumont 1942, no writ). In that circumstance, “[a] gift to a
person to whom the donor is engaged to be married, made in contemplation of
marriage, although absolute in form, is conditional; and upon breach of the marriage
engagement by the donee the property may be recovered by the donor.” Shaw, 160
S.W.2d at 991.
Because of the requirement that the donee agree to the conditions placed on
the donor’s contribution, “conditional gifts” of personal property are sometimes
characterized simply as contracts. For example, in Douglass v. Huntress, No. 06-17-
00103-CV, 2018 WL 4224898 (Tex. App.—Texarkana Sept. 5, 2018, no pet.) (mem.
op.), a mother donated most of her life savings to her son and daughter-in-law for
the purchase and improvement of a home where the mother was to live with them
for the rest of her life. Id. at *1. Less than two years later, the son and daughter-in-
law demanded that the mother move out, and they sold the property. Id. at *3–4.
They refused to reimburse the mother, maintaining that her contribution had been “a
gift, without any conditions.” Id. at *4. But, the trial court found, and the reviewing
court agreed, that the mother’s contributions were conditioned on the family’s
1
See, e.g., TEX. TRANSP. CODE § 172.001(8) (specifying that a “restricted gift” is not part
of the definition of “revenue” in laws governing rural rail transportation districts).
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continuing to live together on the property for the remainder of the mother’s life. See
id. at *6. The parties’ agreement was therefore treated as an oral contract, and the
son and daughter-in-law were held liable for its breach. Id. at *5.
As between private parties, standing to sue for the return of a conditional gift
upon the failure of the condition is straightforward under the general test for
standing:
First, the plaintiff must have suffered an “injury in fact”—an invasion
of a legally protected interest which is (a) concrete and particularized,
and (b) “actual or imminent, not ‘conjectural’ or ‘hypothetical.’”
Second, there must be a causal connection between the injury and the
conduct complained of—the injury has to be “fairly . . . trace[able] to
the challenged action of the defendant, and not . . . th[e] result [of] the
independent action of some third party not before the court.” Third, it
must be “likely,” as opposed to merely “speculative,” that the injury
will be “redressed by a favorable decision.”
Heckman v. Williamson Cnty., 369 S.W.3d 137, 154–55 (Tex. 2012) (quoting Lujan
v. Defenders of Wildlife, 504 U.S. 555, 560–61, 112 S. Ct. 2130, 119 L. Ed. 2d 351(1992)) (alterations in original). So, for example, a person who gives a prospective
spouse an engagement ring in contemplation of marriage has standing to sue for its
return when the other party breaks the engagement.
The question of standing becomes more complicated when the recipient of a
conditional gift is a public charity, also known as a “charitable trust.”2 The attorney
general “is the representative of the public and is the proper party to maintain” a suit
“vindicating the public’s rights in connection with that charity.” Nacol v. State, 792
S.W.2d 810, 812 (Tex. App.—Houston [14th Dist.] 1990, writ denied); see also TEX.
PROP. CODE § 123.002 (attorney general’s participation in proceeding involving
2
It is undisputed that TTV is a public charity. Consequently, TTV is considered a
“charitable trust,” as is any gift to it, and this case is a “proceeding involving a charitable trust.”
See TEX. PROP. CODE § 123.001(1), (2), and (3).
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charitable trust). A private individual has standing to maintain a suit against a public
charity only if the person seeks vindication of some “peculiar or individual rights,
distinct from those of the public at large.” Lokey v. Tex. Methodist Found., 479
S.W.2d 260, 265 (Tex. 1972) (quoting Carroll v. City of Beaumont, 18 S.W.2d 813,
820 (Tex. App.—Beaumont 1929, writ ref’d)).
Eshelman contends that the conditional nature of his contribution gave him
the individual right to revoke the gift for TTV’s failure to abide by the conditions.
The defendants argued in their pleas that Eshelman in fact attached no conditions to
his gift or that his pleading of a conditional gift was incurably deficient.
IV. CHALLENGE TO THE UNDERLYING FACTS
The parties’ appellate briefing focuses on their argument that a “conditional
gift” such as Eshelman has alleged requires an express, written “right of reverter,”
which Eshelman has not alleged. Indeed, the first subheading in the defendants’ joint
response brief is, “The Only Facts That Are Relevant Here Relate to Eshelman’s
Missing Right to Reverter, and Core Facts Prove it Missing.” But, what all of the
parties have overlooked on appeal—and what Eshelman appears to have overlooked
in the trial court as well—is that defendants TTV, Catherine Engelbrecht, William
Engelbrecht, OPSEC, and Phillips have challenged not only Eshelman’s pleading,
but also the existence of a crucial jurisdictional fact.
We, however, cannot overlook this ground. As the Supreme Court of Texas
has stated, “if a plea to the jurisdiction challenges the existence of jurisdictional
facts, we consider relevant evidence submitted by the parties when necessary to
resolve the jurisdictional issues raised, as the trial court is required to do.” Miranda,
133 S.W.3d at 227 (emphasis added). The trial court was required to consider the
challenge by five of the defendants to a key jurisdictional fact, and so must we.
Eshelman does not argue on appeal that the trial court erred in granting these
8
defendants’ jurisdictional pleas on this ground, and after reviewing the record and
the evidence de novo, we conclude that this ground supports the trial court’s ruling
granting the jurisdictional pleas of these defendants.
TTV, the Engelbrechts, OPSEC, and Phillips stated in their jurisdictional
pleas that Eshelman lacked “standing to sue these Defendants relating to matters that
concern the contribution to a charitable organization and its operations.” In the brief
in support of their plea, they elaborated on this assertion, stating, “There were no
particular ‘strings’ on the money that had been donated,” and “there was never a
discussion that suggested the donated funds were conditional, were contingent upon
certain actions or conduct, or were subject to being revoked if True the Vote
somehow failed to perform a task or was not as successful in their efforts.” These
assertions were supported by Catherine Engelbrecht’s declaration that “there was no
discussion or suggestion of any sort between Mr. Eshelman and myself, or his
agents . . . and myself, that Eshelman’s gift was conditional in any way.” She added
that “there was no communication, written or oral, where any limitation or condition
was imposed on his contribution, or even discussed, or that if we did not do certain
things . . . , he would be entitled to a return of his funds.” The statements in this
declaration contradict the allegation in Eshelman’s petition that he made
contributions to TTV “on the condition that the funds would be used to fund
Defendant True the Vote’s projects related to the 2020 presidential election that
Defendant Englebrecht represented on the call.”3
By this evidence, TTV, the Engelbrechts, OPSEC, and Phillips challenged the
facts underlying Eshelman’s position “that he, himself (rather than a third party or
the public at large), suffered the injury” at issue. Meyers v. JDC/Firethorne, Ltd.,
3
Emphasis in original.
9
548 S.W.3d 477, 485 (Tex. 2018) (quoting Heckman, 369 S.W.3d at 155). If, as
these parties contend, Eshelman’s contributions were unconditional, then he has
suffered no injury distinct from that of the general public’s injury from TTV’s failure
to dedicate at least $1 million to its whistleblower program, at least $1 million to
some combination of communications outreach and litigation, and at least an
additional $500,000 to these or other programs to invalidate the results of the 2020
presidential election. Because these parties produced evidence that there were no
conditions on Eshelman’s donation, the burden shifted to Eshelman to produce
evidence sufficient to raise a genuine issue of material fact as to whether his
contributions were conditional as he alleged. See Miranda, 133 S.W.3d at 228.
Although Eshelman filed a consolidated response to all of the defendants’
pleas, he failed to support it with any evidence, instead simply referring the trial
court to his live pleading. Catherine Engelbrecht’s declaration is therefore
uncontroverted. Because there is no evidence that Eshelman’s gift was conditional,
there is no evidence that Eshelman sustained a particularized injury distinct from
that of any other donor or from the public at large. The trial court accordingly did
not err in sustaining TTV’s jurisdictional plea.
The same problem exists concerning Eshelman’s claims against the
Engelbrechts, OPSEC, and Phillips. All of Eshelman’s claims against them are
premised on his unsupported allegation that TTV did not abide by the conditions on
his contribution, but the special standing requirements applicable to public charities
exist not only to protect the charitable trust from harassment, but also to protect its
trustees. Coffee v. William Marsh Rice Univ., 403 S.W.2d 340, 347 (Tex. 1966). The
standing requirement of a particularized injury distinct from that suffered by the
public at large would be eviscerated if Eshelman, having failed to produce any
evidence controverting Catherine Engelbrecht’s declaration that Eshelman made an
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unconditional gift to TTV, could circumvent that requirement by substituting claims
against TTV’s agents, or to its employees or contractors who received funds from
the charity.
We overrule Eshelman’s first issue, which pertains only to TTV, and we
overrule his second issue as it pertains to Catherine Engelbrecht, William
Engelbrecht, OPSEC, and Phillips.
V. CHALLENGE TO THE SUFFICIENCY OF ESHELMAN’S PLEADING
Bopp and The Bopp Law Firm (“the Bopp Defendants”) challenged only
Eshelman’s pleading; they did not challenge his allegation that he transferred funds
to TTV on the condition that the money be used for specific purposes. 4 This is a
crucial distinction, because if the movant produces no controverting evidence, we
assume the plaintiff’s factual allegations are true. See Heckman, 369 S.W.3d at 150.
Thus, in our review of the trial court’s granting of the Bopp Defendants’ plea to the
jurisdiction, we assume that Eshelman and TTV agreed that his contributions were
conditioned on TTV using the funds as Eshelman directed.
The crux of the Bopp Defendants’ arguments is that even if Eshelman and
TTV orally agreed to his conditions, Eshelman can have no special interest in the
money he donated—that is, an interest separate and distinct from the public’s interest
in TTV’s use of its donations generally so as to support the first element of
standing—unless he has “contractual standing created by way of a gift instrument”
that “explicitly provide[s] that the gift was made conditionally and that [Eshelman]
4
TTV, the Engelbrechts, OPSEC, and Phillips also challenged the sufficiency of
Eshelman’s pleading on the same ground relied upon by the Bopp Defendants, but because we
have sustained the trial court’s granting of their pleas based on their challenge to the underlying
facts, we refer in this section only to the Bopp Defendants.
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retains the right to reverter.”5 Because Eshelman pleaded that he and TTV had an
oral agreement and he did not plead the existence of an express written right of
reverter, the Bopp Defendants maintain that Eshelman has no standing to seek
recovery of his contribution based on TTV’s failure to abide by the agreed-upon
conditions.
We have found no support for this contention in Texas law.6 In Texas, “right
5
They stated in their plea, the “Bopp Defendants also maintain that Eshelman did not make
his gift conditionally, but this Plea to the Jurisdiction is based on the lack of a right to reverter.”
Unlike the other defendants, the Bopp Defendants presented no evidence controverting
Eshelman’s allegation that the gift was conditional.
6
The only Texas source on which the Bopp Defendants rely to support their assertion of
the need for an explicit, written right of reverter is an article presented in 2014 at the State Board
of Texas’s 12th Annual Governance of Nonprofit Organizations course. See Darren B. Moore &
Megan C. Sanders, Giving With Strings Attached: An Examination of Key Issues for
Consideration, STATE BAR OF TEXAS, 12TH ANNUAL GOVERNANCE OF NONPROFIT
ORGANIZATIONS Ch. 9, at 7 (Aug. 21–22, 2014). The authors of the article state that a private
donor’s standing to sue a nonprofit “requires that the donor have a special interest in the donated
gift.” Id. (citing Cornyn v. Fifty-Two Members of the Schoppa Family, 70 S.W.3d 895, 899–901
(Tex. App.—Amarillo 2001, no pet.) (donors had special interest in deceased family members’
brain tissue donated for Alzheimer’s research)). The authors then state, “Generally, however,
absent contractual standing created by way of a gift instrument a donor lacks standing to enforce
the terms of a restricted gift because the very concept of a gift is that the donor has irrevocably
parted with all rights in the gifted property.” Id. (emphasis added). The authors cite no authority
for their statement of a general rule. Moreover, they do not contend it is a rule of universal
application. To the contrary, the authors acknowledge that a charity is “required to return donations
when the gift is conditional and the condition fails.” Id. at 8. This was also acknowledged in
another article presented at the same seminar. See Brad Fletcher & Jennifer Justice, Governance
of Nonprofit Organizations: “Give It Back”, STATE BAR OF TEXAS, 12TH ANNUAL GOVERNANCE
OF NON-PROFIT ORGANIZATIONS COURSE Ch. 16, at 4 (Aug. 21–22, 2014) (“A donor can make a
gift subject to a condition with such condition having the potential to cause the donee to be divested
of its title in the gifted property.”). See also 38A C.J.S. Gifts § 67 (Westlaw 2022) (“Where a party
makes a gift on certain conditions and the donee violates the conditions or refuses to perform them,
the donor may, in general, revoke the gift on such violation or refusal on the part of the donee.”).
The article on which the Bopp Defendants rely does not state, as the Bopp Defendants represented,
that “[i]n order for a donor to have standing to seek return of his donation, the gift instrument must
explicitly provide that the gift was made conditionally and that the donor also retains the right to
reverter.”
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of reverter” is used interchangeably with “possibility of reverter,”7 which is a term
of art for “the grantor’s right to fee ownership in the real property reverting to him
if the condition terminating the determinable fee occurs.” El Dorado Land Co., L.P.
v. City of McKinney, 395 S.W.3d 798, 801 n.6 (Tex. 2013) (quoting Luckel v. White,
819 S.W.2d 459, 464 (Tex. 1991)) (emphasis added). Reversionary interests in real
property generally are in writing because under the general statute of frauds,
agreements for the sale of real property, or for the lease of real property for more
than one year, are unenforceable unless the agreement, or a memorandum of it, is in
a signed writing. See TEX. BUS. & COM. CODE § 26.01. But, the general statute of
frauds does not apply to a cash contribution to a public charity, so we must look
elsewhere for the source of any requirement that a donor’s reversionary interest in a
conditional cash gift must be memorialized in an express writing.
Nevertheless, the Bopp Defendants have not cited, and we have not found,
any Texas case recognizing such a requirement or holding that a donor who has made
a conditional gift to a public charity has standing to sue for recovery of the
contribution upon the charity’s breach of the orally agreed-upon condition only if
the parties also expressly agreed in writing that the donor retained a reversionary
interest in the contributed funds. Because we find no support in Texas law for the
contention that such a writing is essential to Eshelman’s standing to sue TTV, we
cannot conclude that Eshelman must plead the existence of such a writing in order
to establish his standing to sue the Bopp Defendants.
7
See, e.g., ConocoPhillips Co. v. Koopmann, 542 S.W.3d 643, 659 (Tex. App.—Corpus
Christi–Edinburg 2016), aff’d on other grounds, 547 S.W.3d 858 (Tex. 2018) (“right of reverter”
used in the intermediate appellate court, and “possibility of reverter” used in the Supreme Court
of Texas); BP Am. Prod. Co. v. Laddex, Ltd., 458 S.W.3d 683, 684 (Tex. App.—Amarillo 2015),
aff’d, 513 S.W.3d 476 (Tex. 2017) (same).
13
Further, for the purpose of reviewing the trial court’s grant of the Bopp
Defendants’ plea to the jurisdiction, we must assume the truth of Eshelman’s
allegation that TTV agreed that its breach of the parties’ agreement to use the
contributed funds solely for the “Validate the Vote 2020” project “would entitle
[Eshelman] to damages in the amount of his conditional contribution at a minimum.”
In effect, Eshelman is suing to enforce this provision of the oral agreement. Unlike
the attorney general, who has standing to represent the general public’s interest in
the charity’s administration, Eshelman has standing to assert his private interest in
enforcing his agreed-upon right to recover damages for breach of the parties’ oral
agreement.
Given the facts as alleged, this is so even though the causes of action he asserts
against the Bopp Defendants are for conversion, declaratory relief, and for money
had and received. Eshelman has alleged that Bopp is TTV’s general counsel, and
that Bopp provides these legal services in and through The Bopp Law Firm.
Eshelman’s claims against the Bopp Defendants include allegations that the Bopp
Defendants received a portion of Eshelman’s conditional contribution, and that their
continued retention of the money is wrongful precisely because they were notified
both that (1) the contribution was conditioned on its use solely for funding TTV’s
“Validate the Vote 2020” effort, and (2) Eshelman revoked the contribution because
the money was not so used. These allegations, accepted as true, are sufficient to
establish Eshelman’s standing to sue the Bopp Defendants for the claims asserted.
Because we find no support in Texas law for the Bopp Defendants’ contention
that Eshelman was required to plead that there is a gift instrument containing an
express right to reverter in order to establish standing, we conclude that the trial
court erred in sustaining the Bopp Defendants’ plea to the jurisdiction.
We sustain Eshelman’s second issue as it pertains to the Bopp Defendants.
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VI. CONCLUSION
We affirm the portion of the trial court’s judgment granting the jurisdictional
pleas of TTV, Catherine Engelbrecht, William Engelbrecht, OPSEC, and Phillips,
because those parties produced uncontroverted evidence that the donation to TTV
was unconditional. The trial court erred, however, in granting the jurisdictional plea
of the Bopp Defendants, because they challenged only Eshelman’s pleading, and
Eshelman alleged sufficient facts to demonstrate his standing. We accordingly
reverse the portion of the judgment dismissing the claims against James Bopp Jr.
and The Bopp Law Firm, and we remand the case for further proceedings.
/s/ Tracy Christopher
Chief Justice
Panel consists of Chief Justice Christopher and Justices Bourliot and Spain
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