Pilgrim Emmanual Baptist Church v. Albert Buckingham

IN THE COURT OF APPEALS OF TENNESSEE
AT NASHVILLE
August 8, 2001 Session
PILGRIM EMMANUAL BAPTIST CHURCH v. ALBERT BUCKINGHAM,
ET AL.
Appeal from the Chancery Court for Davidson County
No. 00-206-I (III) Ellen Hobbs Lyle, Chancellor
No. M2000-02377-COA-R3-CV - Filed September 19, 2001
The parties agreed to the consolidation of two cases for trial and appellate proceedings. The
plaintiffs in each case sought broad injunctive relief to correct alleged irregularities in the affairs of
the church. All named parties, plaintiffs and defendants, were enjoined from disturbing or disrupting
any worship service or church meeting, and certain safeguards were placed on church funds and
property. Thereafter, the church moved for summary judgment which was granted, thus effectively
terminating the litigation. Mr. Buckingham appeals.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Chancery Court Affirmed
WILLIAM H. INMAN, SR. J., delivered the opinion of the court, in which BEN H. CANTRELL, P.J., M.S.
and WILLIAM C. KOCH, JR., J., joined.
Terry R. Clayton, Nashville, Tennessee, for the appellant, Albert Buckingham.
Cyrus L. Booker, Nashville, Tennessee, for the appellee, Pilgrim Emmanuel Baptist Church.
OPINION
I.
The dispositive issue is whether Mr. Buckingham, a member of the incorporated church, had
standing to file an action on behalf of the church against its Pastor, seeking to call him to account
for alleged financial irregularities.
During the pendency of this action the church appointed an Investigation Committee to look
into the allegations of misconduct. The Committee’s report, favorable to the Pastor, was approved
by a majority of the Board of Deacons to whom it was submitted; the Board, in accordance with
accepted procedures, then referred the Report to the entire membership which approved it by a vote
of 114 to 12.
The Chancellor granted the motion of the church for summary judgment, holding that the
action is a derivative one and that “no demand has been made in the substance and form required by
law” and that “no proper derivative claim has been asserted in this action.”
II.
Tenn. Code Ann. § 48-17-401(b) provides that
A complaint in a proceeding in the right of a corporation must be
verified and allege with particularity the demand made, if any, to
obtain action by the board of directors and either that the demand was
refused or why he did not make the demand.
Rule 23.06 of the Tenn. R. Civ. P. requires the complaint to allege with particularity the
efforts of the plaintiff to obtain from the directors or comparable authority, and if necessary, from
the stockholders or members, and the reasons for his failure to obtain the action or not making the
effort.
Mr. Buckingham’s complaint was not verified, and no written demand was served by him
requesting that a specific claim should be asserted on behalf of the church against its Pastor. There
is no evidence in the record that such demand would have been futile. See, Lewis v. Boyd, 838
S.W.2d 215 (Tenn. Ct. App. 1992).
It results that the judgment of the Chancery Court must be affirmed at the costs of the
appellant, Albert Buckingham.
___________________________________
WILLIAM H. INMAN, SENIOR JUDGE
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