Episcopal Church v. Salazar (547 S.W.3d 353, 2018)

PANEL: SUDDERTH, C.J.; GABRIEL, J.

BONNIE SUDDERTH, CHIEF JUSTICE

I. Introduction

The parties' long-running dispute involves, among other things, title to and possession of church property. In 2014, on a direct appeal, the Supreme Court of Texas identified the appropriate methodology to determine the property ownership issue-neutral principles of law-and remanded this case to the trial court. See Episcopal Diocese of Fort Worth v. Episcopal Church , 422 S.W.3d 646, 647 (Tex. 2013), cert. denied , --- U.S. ----, 135 S.Ct. 435, 190 L.Ed.2d 327 (2014) ; see also Masterson v. Diocese of Nw. Tex. , 422 S.W.3d 594, 596, 608 (Tex. 2013), cert. denied , --- U.S. ----, 135 S.Ct. 435, 190 L.Ed.2d 327 (2014). No one disputes that the Corporation of the Episcopal Diocese of Fort Worth (the Corporation) holds legal title to the property or that the Corporation holds the property in trust for the Episcopal Diocese of Fort Worth (EDFW). Rather, at its heart, the parties' dispute is over who has the right to control the Corporation and EDFW as legal entities.

In a single issue containing multiple sub-issues, Appellants The Episcopal Church (TEC), the Most Reverend Katharine Jefferts Schori, The Local Episcopal Parties, and The Local Episcopal Congregations (collectively, the TEC parties) appeal the trial court's summary judgment for Appellees Franklin Salazar and the Intervening Congregations (collectively, Appellees).

For ease in navigating this highly complex case, we set forth the following roadmap: Part II of this opinion contains EDFW's history and the procedural background of this case as pertinent to its disposition. Part III sets out the standard of review and the case's legal framework, starting with the binding precedent of the United States Supreme Court and the Supreme Court of Texas and followed by persuasive authorities that inform our judgment before addressing the applicable state substantive law on associations, corporations, and trusts and then applying these authorities to the case's dispositive issues in parts III.B.2-B.4. Part IV sets out in full our conclusion, which is that we affirm the trial court's judgment in part and reverse it in part and remand the case to the trial court for further proceedings.

II. Background

Religious schisms that give rise to property disputes are not unprecedented.

TEC, for example, was founded in 1789 after its revolutionary constituents broke away from the Church of England. See Episcopal Diocese , 422 S.W.3d at 647 ; Bennison v. Sharp , 121 Mich.App. 705, 329 N.W.2d 466, 468 (1982) ; Hon. John E. Fennelly, Property Disputes and Religious Schisms: Who is the Church? , 9 St. Thomas L. Rev. 319, 347 n.251 (1997). The Church of England, in turn, began with Henry VIII's break with the Roman Catholic Church in 1534. Fennelly, 9 St. Thomas L. Rev. at 347 & n.251 (referencing Protestant Episcopal Church v. Barker , 115 Cal.App.3d 599, 171 Cal.Rptr. 541, 544 (Cal. Dist. Ct. App.), cert. denied , 454 U.S. 864, 102 S.Ct. 323, 70 L.Ed.2d 163 (1981) ). And, as observed by the United States Supreme Court, "14 autocephalous hierarchical churches ... came into existence following the schism of the universal Christian church in 1054." Serbian E. Orthodox Diocese for U.S. of Am. & Canada v. Milivojevich , 426 U.S. 696, 699, 96 S.Ct. 2372, 2376, 49 L.Ed.2d 151 (1976) ; see also Kedroff v. St. Nicholas Cathedral of Russian Orthodox Church , 344 U.S. 94, 100, 73 S.Ct. 143, 146, 97 L.Ed. 120 (1952) ("The schism of 1054 A.D. split the Universal Church into those of the East and the West.").

A. The Hierarchical Church

TEC has been identified by our supreme court as a "hierarchical" type of religious organization, composed of tiers,

[t]he first and highest [of which] is the General Convention. The General Convention consists of representatives from each diocese and most of TEC's bishops. It adopts and amends TEC's constitution and canons. The second tier is comprised of regional, geographically defined dioceses.[ ] Dioceses are governed by their own conventions. Each diocese's convention adopts and amends its own constitution and canons[ ] but must accede to TEC's constitution and canons. The third tier is comprised of local congregations.

Local congregations are classified as parishes, missions, or congregations.[ ]

Episcopal Diocese , 422 S.W.3d at 647-48 ; Masterson , 422 S.W.3d at 608 ("We agree with the court of appeals that the record conclusively shows TEC is a hierarchical organization.").

TEC's constitution and canons "establish the structure of the denomination and rules for how it operates." Masterson , 422 S.W.3d at 600. As set out in its constitution and canons, TEC's Presiding Bishop is its "chief pastor," elected by the General Convention-consisting of the House of Bishops and the House of Deputies-to a multi-year term of office and "charged with responsibility for leadership in" initiating, developing, and implementing TEC's policy and strategy. In addition to the Presiding Bishop's policy and leadership tasks, he or she also presides over meetings of TEC's House of Bishops and performs ecclesiastical tasks, including, "[i]n the event of an Episcopal vacancy" in a diocese, consulting with that diocese's "Ecclesiastical Authority to ensure that adequate interim Episcopal Services are provided." The Presiding Bishop "shall perform such other functions as shall be prescribed in" TEC's canons and may delegate some duties and responsibilities to officers in the General Convention's Executive Council, which is responsible for carrying out the General Convention's programs and policies and exercises "powers conferred upon it by Canon, and such further powers as may be designated by the General Convention." The Presiding Bishop is the chair and president of the Executive Council.

The bishop in each diocese is chosen by the rules prescribed by the convention of that diocese but cannot be ordained and consecrated without the consent of a majority of the standing committees of all of the dioceses and without the consent of a majority of TEC's bishops. If one of TEC's bishops abandons communion with TEC by open renunciation, formal admission into any religious body not in communion with TEC, or other activities, subject to the procedures set out in TEC's canons and the consent of the majority of TEC's bishops, the Presiding Bishop may depose that bishop.

The convention of each diocese must appoint a standing committee, which acts as the council of advice for the diocese's bishop or substitutes as the diocese's ecclesiastical authority if there is no bishop canonically authorized to act. Under TEC's canons, a diocese without a bishop may, by an act of its convention and in consultation with the Presiding Bishop, "be placed under the provisional charge and authority of a bishop of another diocese or of a resigned bishop, who shall by that act be authorized to exercise all the duties and offices of the Bishop of the Diocese until a Bishop is elected and ordained" for that diocese or until the act of the diocese's convention is revoked.

Each diocese's secretary of convention has the responsibility to forward to the secretary of TEC's House of Deputies a copy of the latest journal of the diocesan convention. Each diocese's bishop has the duty to forward to TEC's Recorder an annual report certifying information such as the names of clergy canonically resident in the diocese and their status, including suspension, removal, deposition, or restoration.

TEC's Executive Council sets a budget that, once approved by TEC's General Convention, is sent to each diocese, setting out each diocese's proportionate part of estimated expenditures. Each diocese then notifies each parish and mission therein of its individual "apportionment" to be raised, "which shall include both its share of the proposed Diocesan Budget and its share of the objective apportioned to the Diocese by the Executive Council." Each diocese accounts annually to the Executive Council for its receipts and distributions, and each diocese submits an annual report that contains statistical information concerning the diocese's parishes and missions and other "relevant information." TEC established and administers a pension fund for TEC's clergy supported by the royalties from publications authorized by the General Convention and by collections levied upon "all Parishes, Missions, and other ecclesiastical organizations or bodies subject to the authority of this Church."

A parish, part of the third tier identified by the supreme court, is governed by a rector or priest-in-charge and a vestry comprised of lay persons elected by parish members. Masterson , 422 S.W.3d at 600. Members of the vestry must meet certain qualifications, including committing to "conform to the doctrine, discipline and worship of The Episcopal Church." Id. To be accepted into union with TEC, a local congregation must accede to and agree to be subject to the constitutions and canons of both TEC and the diocese in which the congregation is located. Id.

Every parish and other congregation prepares an annual report to the bishop of its diocese, who then sends a copy to TEC's Executive Council. The annual report covers not only the number of baptisms, confirmations, marriages, and burials during the year and the total number of baptized persons and communicants in good standing but also a summary of receipts and expenditures and "such other relevant information as is needed to secure an adequate view of the state of this Church, as required by the approved form." At the time that EDFW joined TEC, "other relevant information" included a statement of the real and personal property held by each parish with an appraisal of its value, the parish's indebtedness for the property, and the amount of insurance carried on the property.

B. The Episcopal Diocese of Fort Worth (EDFW)

1. Diocese's Origins

In 1849, "[t]he Church in the State of Texas accede[d] to the Constitution of the Protestant Episcopal Church in the United States of America" and "acknowledg[ed] its authority," and in 1850, the Diocese of Texas was admitted into union with TEC. In 1874, a missionary bishop of Northern Texas was elected and consecrated and the Diocese of Texas was delimited to set apart the area to the north and west as the Missionary District of Northern Texas. Four years later, the 1878 Journal of the Fourth Annual Convocation of the Protestant Episcopal Church in the Missionary District of Northern Texas set out the form for a constitution of a parish acceding to the TEC and diocesan constitutions and canons:

This Parish, as a constituent part of the Protestant Episcopal Church in the Missionary District of Northern Texas, expressly accedes to, recognizes and adopts the Constitution, Canons, Doctrines, Discipline and Worship of the Protestant Episcopal Church in the United States of America, and the Constitution and Canons of the Protestant Episcopal Church in this jurisdiction, and acknowledges their authority accordingly.

In 1893, TEC's constitution provided that no churches or chapels would be consecrated until the bishop sufficiently certified that the property was "secured, by the terms of the devise, or deed, or subscription by which they are given, from the danger of alienation, either in whole or in part, from those who profess and practise the doctrine, discipline, and worship of the Protestant Episcopal Church in the United States of America."

Two years later, the Diocese of Dallas held its first diocesan convention. The preamble to its originating December 1895 constitution states,

We, the Clergy and Laity, of the Protestant Episcopal Church, in the United States of America, resident in that portion of the State of Texas which, by the General Convention of said Church, was in the year A.D. 1874 set off as the Missionary District of Northern Texas, having been convened by the Missionary Bishop of Northern Texas, for the purpose of organizing a Diocese whose territorial limits shall be co-extensive with those of said Missionary District, do now, by and with the consent of said Bishop and in order to effect the organization of said Diocese, ordain and establish this Constitution.

Over half a century later, at its 53rd annual convention held in 1948, the Diocese of Dallas amended its constitution's article 13, "On Title to Church Property." That article provided that title to all real property acquired "for the use of the Church in this Diocese," including the real property of all parishes and missions, "shall be vested in the Bishop and his successors in office, in trust."

More than three decades after that, in June 1982, the Diocese of Dallas held a special convention to consider a resolution to divide itself and, if approved, to request that TEC's General Convention ratify the division. The resolution passed.

TEC held its General Convention that same year, from September 5 to 15, 1982. On the fourth day, the motion to adopt Resolution B-18, providing for the division of the Diocese of Dallas, carried in the House of Bishops. On the seventh day, the House of Deputies concurred, ratifying the division to create EDFW (known at that time only as the "Western Diocese") based on, among other things, the certificate of the Diocese of Dallas's Chancellor that all of the requisite documents had been executed and "that all of the appropriate and pertinent provisions of the Constitution and Canons of the General Convention of the Episcopal Church in the USA and the Constitution and Canons of the Diocese of Dallas have been fully complied with in respect of this submission."

The October 1982 Annual Meeting Journal of the Diocese of Dallas reflected that seventy-two years after the division issue was first raised in 1910, the Diocese of Dallas was finally sharing "in the trauma and excitement of such a division," resulting, at least in part, from the area's significant population growth over time and the size of the diocese (larger than 43 other dioceses, including some dioceses that covered entire states). Bishop Davies observed that the General Convention had ratified the action of the diocesan convention when it voted to divide the Diocese of Dallas, that the new diocese planned to come into existence as of January 1, 1983, with the filing of its documents with the Secretary of TEC's General Convention, and that the new diocese would hold its primary convention on November 13, 1982, to name itself, organize committees and officers, accede to the national constitution and charters, adopt its own constitution and charters, and implement a budget.

One of the resolutions promulgated at the Diocese of Dallas's October 1982 Annual Meeting declared that "[t]itle to all real property ... located within the territorial boundaries of the western diocese shall be transferred to the western diocese." During the meeting, the Diocese of Dallas's Chancellor was granted permission to initiate and conduct for the diocese "such action in the courts of the State of Texas as may be necessary and prudent for the accomplishment of the goals and purposes of the foregoing resolution, including partition actions, cy-pres actions, and other actions under the laws of Texas or the United States." Additionally, the resolution provided that the division of all corporations, foundations, and funds "shall be made subject to the terms, conditions[,] and purposes of the instruments establishing them and any amendments thereto."

EDFW adopted its constitution and canons on November 13, 1982. It was admitted into union with TEC on December 31, 1982.

2. 1983-1990

Article 13 of EDFW's constitution provided that "title to all real estate acquired for the use of the Church in this Diocese ... shall be held subject to control of the Church in the Episcopal Diocese of Fort Worth acting by and through a corporation" and that "[a]ll such property as well as all property hereafter acquired for the use of the Church and the Diocese, including parishes and missions, shall be vested in [the] Corporation of the Episcopal Diocese of Fort Worth." EDFW's canons established the parameters for the Corporation's management. See Episcopal Diocese , 422 S.W.3d at 648. Specifically, canon 11, "Corporation of the Episcopal Diocese of Fort Worth," set out,

Sec. 11.1 Corporation of the Episcopal Diocese of Fort Worth is a non-profit benevolent[ ] and charitable organization organized under Texas laws, also known as the "Diocesan Corporation". In addition to its regular powers, it may receive, hold, manage and administer funds and properties acquired by gift or by will or otherwise for the use and benefit of the Diocese and any Diocesan Institutions.

Sec. 11.2 The management of its affairs shall be conducted and administered by a Board of Trustees of five (5) elected members, all of whom are either Lay persons[ ] in good standing of a parish or mission in the Diocese, or members of the Clergy canonically resident in the Diocese, in addition to the Bishop of the Diocese who shall serve as Chairman of the Board or may designate the President or other officer of the corporation to serve as such. The Board of Trustees shall have the power and authority to conduct the affairs of said corporation in accordance with its charter and by-laws and in accordance with the Constitution and Canons of the Diocese from time to time adopted.

Sec. 11.3 One member of the Board of Trustees shall be elected at each Annual Convention and each member shall serve a term of five (5) years. The terms of members shall be so arranged that the term of only one (1) member shall expire annually. The Board of Trustees shall fill any vacancy which occurs on the Board until the annual election. The Bishop shall nominate the members of the Board of Trustees.

Sec. 11.4 The Board of Trustees shall adopt its own by-laws and shall elect such officers as its by-laws may require.

Sec. 11.5 The Board of Trustees shall submit a report at each Annual Convention covering its operations for the preceding fiscal year and showing its financial condition. If and when required by the Standing Committee of the Diocese, the Board of Trustees shall make such additional reports and furnish such additional information as may [be][ ] requested. The books and records of the Board of Trustees shall at all times be open for inspection and examination by the Standing Committee of the Diocese or its representatives.

EDFW filed articles of incorporation for the Corporation on February 28, 1983. The 1983 articles established that the Corporation was a nonprofit corporation of perpetual duration with the following purposes set out as follows, in pertinent part:

(1) To receive and maintain a fund or funds or real or personal property, or both, from any source including all real property acquired for the use of the Episcopal Diocese of Fort Worth as well as the real property of all parishes, missions and diocesan institutions. Subject to the limitations and restrictions hereinafter set forth, to use and apply the whole or any part of the income therefrom and the principal thereof exclusively for charitable, religious, scientific, literary, or educational purposes either directly or by contributions to organizations that qualify as exempt organizations under Section 501(c)(3) of the Internal Revenue Code and its Regulations as they now exist or as they may hereafter be amended.

(2) The property so held pursuant to (1) supra shall be administered in accordance with the Constitution and Canons of the Episcopal Diocese of Fort Worth as they now exist or as they may hereafter be amended.

The articles also set out that the election of the Corporation's board of directors ("Board of Trustees") and their terms of office "shall be fixed by the by-laws of the corporation as the same may be adopted and from time to time amended."

The Corporation adopted its bylaws on May 17, 1983. Article I, "Authority," states,

Section 1. General The affairs of this nonprofit corporation shall be conducted in conformity with the Constitution and Canons of the Episcopal Church in the United States of America and the Constitution and Canons of the Episcopal Diocese of Fort Worth, as they may be amended or supplemented from time to time by the General Convention of the Church or by the Convention of the Diocese. In the event of any conflict between these Bylaws and any part or all of said Constitution or Canons, the latter shall control.

The bylaws conferred general power to perform all lawful acts and things "as are not by statute or by the Articles of Incorporation or by these Bylaws prohibited." With regard to the number and election of the board of directors and their terms of office, the bylaws paralleled EDFW's constitutional and canonical provisions, stating,

The Bishop of the Diocese of Fort Worth shall be the Chairman of the Board of Trustees of the Diocesan Corporation. In addition to the Bishop the number of elected Trustees which shall constitute the Board shall be five. The term of office for each elected Trustee shall be for five years and each Trustee shall hold office from the date of his election until his successor shall have been duly elected and qualified, or until his death, resignation, disqualification or removal. There shall be elected at each annual meeting one Trustee. Trustees may be either lay persons in good standing of a parish or mission in the Diocese of Fort Worth, or members of the Clergy canonically resident within the Diocese, in addition to the Bishop.

See Tex. Bus. Orgs. Code Ann. § 22.207 (West 2012) ("Election and Control by Certain Entities"). The bylaws also provided for holding regular meetings and special meetings whenever called by the President-designated in the bylaws as the chairman of the board-"or by any two Trustees." They further provided that the quorum necessary to transact business would be not less than a majority of the total number of trustees then acting and set forth the procedures for resignation, board vacancies, and the removal of trustees: "Any Trustee of the Diocesan Corporation may be removed by the Bishop of the Diocese of Fort Worth." The bylaws also included a provision for amendment, stating,

These Bylaws may be amended, altered, changed, added to or repealed, in whole or in part, by the affirmative vote of a majority of the total number of Trustees at any regular or special meeting of the Board, if notice of the proposed change is included in the notice of such meeting.

In 1984, a civil court judgment transferred part of the Diocese of Dallas's real and personal property to EDFW and vested legal title of the property in the Corporation, except for certain assets for which the Diocese of Dallas's bishop and his successors had been designated as trustee; those assets transferred to EDFW's bishop as trustee and to his successors in office. Episcopal Diocese , 422 S.W.3d at 648.

3. 1991-2005

Less than ten years after its admission into union with TEC, conflicts based on differing theological views began to arise between both TEC and EDFW and EDFW and some of its congregations.

In 1991, the Episcopal Church of St. Mary the Virgin withdrew from TEC and EDFW to join a Roman Catholic Diocese.

And at a standing committee meeting, after TEC assigned an apportionment of approximately $230,000 to EDFW, the committee noted that "the withholding of apportionment is regarded by some as sanctions against immorality." The committee agreed to allow the individual parishes within EDFW to choose whether to fund TEC's Executive Council's activities by apportionment through vestry action indicating whether the individual parish's percentage of the diocesan assessment would be forwarded to TEC's Executive Council or should remain under EDFW's control.

During the 1990s, the standing committee received a letter from another diocese that "encouraged the Diocese of Fort Worth to remain in the Episcopal Church" and other correspondence "from those dioceses questioning the intentions of [EDFW] of remaining in the Episcopal Church in the United States of America and the reasons why [EDFW] had reduced its apportionment to the Executive Council's program."

In 1992, the rector and vestry of Holy Apostles Episcopal Church, one of EDFW's parishes, announced the parish's intent to seek membership in the Antiochean Orthodox Church and to sever its relationship with EDFW, TEC, and "the rest of the Anglican Communion." Around then, EDFW's standing committee discussed developing a "future strategy regarding a parish that may try to leave and take diocesan property with them," and in early 1994, the committee finalized the membership of a "Protection of Diocesan Property Committee." The president of the standing committee was named as the property protection committee's chairman. Also during the same time period, the standing committee questioned whether it had veto power over the Corporation's trustees. At their June 1993 meeting, the standing committee received the answer to its question-after a lengthy discussion between Canon James DeWolfe, Bishop Iker, and the Corporation's trustees, it was determined that the Corporation's trustees "had final authority in matters concerning Diocesan property."

By 2000, TEC's General Convention had formed a task force to visit EDFW regarding the implementation of some of TEC's resolutions. In 2000 and 2001, the standing committee was faced with ecclesiastical charges involving Samuel L. Edwards, one of the priests then canonically resident in EDFW. Edwards had moved from Texas to begin acting as the rector of a parish in the Diocese of Washington despite having not been licensed to do so by the bishop pro tempore of the diocese in which that parish was located. See Dixon v. Edwards , 290 F.3d 699, 703, 705, 707 (4th Cir. 2002). On December 17, 2001, the standing committee issued a presentment against Edwards on one of the three ecclesiastical charges, id. at 707, and the following year the standing committee consented to Edwards's deposition.

In 2003, EDFW continued to object to actions by TEC and other dioceses with which it disagreed, and the standing committee unanimously agreed "to work together in initiating a gathering ... in [EDFW] of the Network of Confessing Dioceses in order to work on the realignment of the Anglican Communion." The standing committee met with a bishop of the Reformed Episcopal Church (REC) in May 2003, and decided to meet with REC in the future to further discuss their relationship.

EDFW was not the only diocese experiencing strife in its relationship with TEC during this time. In addition to the Diocese of Quincy and the Diocese of Pittsburgh, which were experiencing their own differences with TEC, in 2004, the Diocese of San Joaquin began the process of amending its governing documents, including the articles of incorporation for "the corporation sole," which held title to the diocese's trust funds and real property, redefining how the vacancy of a bishop was to be filled, and omitting the requirements that the local choice of bishop be approved by the national church as provided in TEC's constitution and canons. See Diocese of San Joaquin v. Gunner , 246 Cal.App.4th 254, 202 Cal.Rptr.3d 51, 56-57 (2016, pet. denied) (op. on reh'g). Nevertheless, even as St. Michael's Episcopal Church in Fort Worth considered holding a parish vote to leave TEC and affiliate with the Anglican Church in America, in 2005, Bishop Iker and the standing committee still expressed hope that "all of us will stand together during this time of difficulty in the Episcopal Church."

4. 2006-2008

In June 2006, immediately after Presiding Bishop Schori's election, Bishop Iker and the standing committee approved the following statement,

The Bishop and the Standing Committee of the Episcopal Diocese of Fort Worth appeal in good faith to the Archbishop of Canterbury, the Primates of the Anglican Communion, and the Panel of Reference for immediate alternative Primatial Oversight and Pastoral Care following the election of Katharine Jefferts Schori as Presiding Bishop of the Episcopal Church.

This action is taken as a cooperative member of the Anglican Communion Network in light of the Windsor Report and its recommendations.

A month later, Bishop Iker discussed with the standing committee a recent meeting of EDFW's Constitution and Canons Committee and its proposed resolutions, additions, and changes to EDFW's constitution and canons "in light of recent developments in our Church," which would be submitted to the diocesan convention in November 2006.

On August 15, 2006, the Corporation amended its bylaws to remove all references to TEC. Episcopal Diocese , 422 S.W.3d at 648. Article I, "Authority," was amended to provide that the Corporation's affairs

shall be conducted in conformity with the body now known as the Episcopal Diocese of Fort Worth's acknowledgment of and allegiance to the One, Holy, Catholic and Apostolic Church of Christ; recognizing the body known as the Anglican Communion to be a true branch of said Church; with all rights and authority to govern the business and affairs of the Corporation being solely in the board of trustees (as hereinafter defined, the "Board") of the Corporation.

This amendment also deleted the reference to "the Constitution and Canons of the Episcopal Church in the United States of America and the Constitution and Canons of the Episcopal Diocese of Fort Worth." A new section was added to Article II, "Directors," which stated,

Section 2. The Bishop. The bishop recognized by the body now known as the Episcopal Diocese of Fort Worth (the "Bishop") shall be a trustee and a member of the Board. The Bishop shall be the Chairman of the Board of the Corporation.

In the event of a dispute or challenge regarding the identity of the Bishop of the body now known as the Episcopal Diocese of Fort Worth, the Elected Trustees (as hereinafter defined in Article II, Section 3) shall have the sole authority to determine the identity of the Bishop for purposes of the Corporation's Articles of Incorporation, as amended from time to time, and these Bylaws.

In the event the body now known as the Episcopal Diocese of Fort Worth is without a Bishop, a majority of the Elected Trustees shall have the sole authority to appoint a Chairman of the Board who shall, for purposes of the Corporation's Articles of Incorporation, as amended from time to time, and these Bylaws, have all the rights and privileges of the Bishop of the body now known as the Episcopal Diocese of Fort Worth.

If a determination pursuant to this Article II becomes necessary in the discretion of any member of the Board, the Board member may call a special meeting of the Board, subject to the notice provisions set forth in these Bylaws, for the purpose of making the determination. The vote of a majority of members of the Board present at the special meeting, wherein a quorum is present, shall be decisive.

There was no change to the number, election, or terms of office for trustees other than to clarify that the trustees, who were elected at a rate of one per annual meeting, could be either lay persons in good standing of a parish or mission "in the body now known as the Episcopal Diocese of Fort Worth" or members of the clergy "canonically resident within the geographical region of the body now known as the Episcopal Diocese of Fort Worth." The rest of the sections remained substantively unchanged except for the section pertaining to removal of trustees. While the previous version of the section provided that any trustee could be removed by the bishop, the amended section stated that any elected trustee could be removed by a majority of the remaining members of the board. The amended bylaws also stated, "These Bylaws were considered and unanimously approved at the Board's annual meeting August 15, 2006, at which every Board member was present."

On September 5, 2006, the Corporation's board likewise amended the Corporation's articles of incorporation. Id. The preamble recited that articles IV, V, and VI had been revised and approved by a unanimous vote by the board on August 15, 2006.

Section 1 of article IV was amended to state that the Corporation was organized "[t]o receive and maintain a fund or funds or real or personal property, or both, from any source," deleting the portion of the earlier article that specified that "any source" included "all real property acquired for the use of [EDFW] as well as the real property of all parishes, missions and diocesan institutions."

Section 2 of article IV was amended to state that the property held under section 1 "shall be administered in accordance with the Bylaws of the Corporation as they now exist or as they may hereafter be amended," deleting reference to EDFW's constitution and canons. Article VI incorporated a provision to identify the Corporation's chairman, paralleling and referencing the amended bylaws. Article VI also listed the names of the trustees serving at that time: Salazar, Barber, Bates, Virden, Patton, and Bishop Iker. According to Virden, the 2006 amendments to the Corporation's bylaws "were not adopted as part of any plan to withdraw from TEC, as those discussions did not begin until the summer of 2007."

On October 19, 2006, Presiding Bishop Schori informed Bishop Iker that some of the provisions in EDFW's constitution and canons were contrary to TEC's constitution and canons and that those provisions needed to be changed. Otherwise, Presiding Bishop Schori said that she would have to consider what sort of action to take to bring EDFW into compliance. On November 15, 2006, TEC's Executive Council received a task force report identifying EDFW as a "problem diocese" that needed to be monitored.

On June 14, 2007, TEC's Executive Council declared some of EDFW's constitutional and canonical amendments to be "null and void." Four days later, Bishop Iker and the standing committee released a statement noting that an adversarial relationship had developed between EDFW and TEC, asserting that TEC's Executive Council "ha[d] no legislative authority, and its resolutions [were] not binding on anyone," and further positing that it was the Executive Council's resolution "in this matter that is null and void, and it is of no force or effect in this Diocese."

On November 8, 2007, the week before EDFW's November 17, 2007 Annual Convention, Presiding Bishop Schori published an open letter to Bishop Iker, stating that several of the proposed changes to EDFW's constitution would violate the requirement in TEC's constitution for the diocese's "unqualified accession." In the letter, she warned Bishop Iker of the potential canonical consequences and asked him to lead EDFW "on a new course that recognizes the interdependent and hierarchical relationship between the national Church and its dioceses and parishes" instead of in a direction "that would purportedly permit [EDFW] to depart from [TEC]." The Episcopal Church, Fort Worth bishop receives notice of possible consequences if withdrawal effort continues (Nov. 8, 2007), at https://www.episcopalchurch.org/library/article/fort-worth-bishop-receives-noticepossible-consequences-if-withdrawal-effort.

On November 12, 2007, Bishop Iker responded by publishing his own open letter, in which he stated,

While I do not wish to meet antagonism with antagonism, I must remind you that 25 years ago this month, the newly formed Diocese of Fort Worth voluntarily voted to enter into union with the General Convention of the Episcopal Church. If circumstances warrant it, we can likewise, by voluntary vote, terminate that relationship. Your aggressive, dictatorial posturing has no place in that decision. Sadly, however, your missive will now be one of the factors that our Convention will consider as we determine the future course of this diocese for the next 25 years and beyond, under God's grace and guidance.

The Episcopal Diocese of Fort Worth, A letter from Bishop Iker to the Presiding Bishop (Nov. 12, 2007), at http://www.fwepiscopal.org/bishop/bishoppbreply.html.

In his November 17, 2007 address at the Annual Convention, Bishop Iker recounted the Executive Council's resolution and stated "that such declarations exceeded the authority of the Executive Council, which is responsible for the program and budget of the General Convention, and that they had no legislative or judicial authority to make such a pronouncement." Bishop Iker stated, "The Council's declaration about the legitimate legislative process in this Diocese is, in fact, null and void." Bishop Iker also voiced his objection "to the claim that the Presiding Bishop has any canonical authority in this Diocese or any legitimate power over the leadership of this Diocese" and stated that "[t]here is no such thing as 'the national Church,' " but rather a confederation of dioceses.

At the standing committee's follow-up meeting on November 19, 2007, Bishop Iker expressed his desire that his convention address be shown in all of EDFW's parishes and missions prior to each congregation's annual parish meeting. The standing committee discussed with Bishop Iker "the need to begin immediate study of the Constitution and Canons of the Province of the Southern Cone."

In January 2008, Bishop Iker sent a directive to appoint clerical members of the standing committee plus four rectors "who have said they want to remain in TEC and four who believe it is time to separate," asking for their assistance in addressing conflicts in EDFW "concerning the plan to separate from The General Convention of The Episcopal Church." Three months later, at the March 2008 meeting, the standing committee also discussed, among other things, "the current situation in the Diocese of San Joaquin."

A month later, the committee's notes reflect that Bishop Iker was "trying to work out a pastoral plan and provision" for the parishes "who may wish to remain in TEC following [the] November Diocesan Convention," with the assistance of Dallas's bishop and standing committee. Bishop Iker and the standing committee sent a letter to the Internal Revenue Service to inform the IRS that EDFW "no longer desires to be included under the group ruling of the Protestant Episcopal Church of the United States of America." In May 2008, the standing committee approved a new civil employment contract with Bishop Iker and ended the former employment agreement.

Reverend Buchanan declared in his affidavit that in 2008, prior to EDFW's purported disaffiliation, TEC's House of Bishops had "affirmed that diocesan leaders have no authority to remove their dioceses from The Episcopal Church." But by September 2008, the standing committee was poised to recommend that EDFW "affiliate with the Anglican Province of the Southern Cone as a member diocese, on a temporary, pastoral basis, until such time as an orthodox Province of the Anglican Communion can be established in North America." The standing committee's members unanimously approved and endorsed the following resolution from EDFW's Convention Resolutions Committee:

BE IT RESOLVED, that the Episcopal Diocese of Fort Worth, meeting in its 26th Annual Convention, does hereby accept the provision made by the Anglican Province of the Southern Cone, and the Episcopal Diocese of Fort Worth does hereby immediately enter into membership with the Anglican Province of the Southern Cone as a full and equal constituent member of such Province, and the Episcopal Diocese of Fort Worth does hereby accede to the authority of the Constitution and Canons of the Anglican Province of the Southern Cone to the extent such Constitution and Canons are not contrary to Holy Scripture and the Apostolic teaching of the one holy, catholic and apostolic Church.

In September 2008, Bishop Iker sent a letter to the rector of All Saints Episcopal Church, Christopher Jambor, stating that properties located at 4936, 4939, 5001, and 5005 Dexter Avenue, Fort Worth, were not "picked up" by the 1984 declaratory judgment nor held by the Corporation but rather were held in the name of All Saints Episcopal Church. In the letter, Bishop Iker asked that a deed be executed to transfer the parcels to the Corporation.

On November 15, 2008, in his address at the 26th Annual Convention, Bishop Iker observed that EDFW had come "to this historic moment of decision making" during which EDFW would "vote to rescind" its accession to TEC's constitution and canons and to align itself "instead with an orthodox Province of the Anglican Communion, the Province of the Southern Cone." Bishop Iker stated,

Some have asked, "Will we still be Episcopalians after our realignment vote is taken?" And the answer is, "Well, yes and no-that all depends!" After all, no one can "un-Episcopalian-ize you, and no one is being kicked out of the family. We will still be The Episcopal Diocese of Fort Worth. We are not changing our name, because we are not changing our identity. We will still have an Episcopal form of polity, which means being in a church that is under a Bishop. We will continue to stand for what our forebears meant when they called themselves Episcopalians. But we will no longer be a part of the ecclesiastical structure sometimes known as the Protestant Episcopal Church in the United States of America, which is governed by the General Convention. TEC is not the only Episcopal Church in the Anglican Communion, and it does not own the name "Episcopalian."

....

... [T]he proposals before this Convention have one clear message: We here in the Episcopal Diocese of Fort Worth intend to be who we have always been, to believe what we have always believed, and to do what we have always done. We are not going away, nor are we abandoning anything. We are not leaving the Church-we are the Church. We will remain an orthodox diocese of catholic Christians, full members of the worldwide Anglican Communion.

The majority of EDFW's Annual Convention voted to leave TEC and to affiliate with the Anglican Province of the Southern Cone.

Following the 26th Annual Convention in November, EDFW published a statement on its website, declaring,

We remain a member diocese of the Anglican Communion.

We remain the Episcopal Diocese of Fort Worth. The word "episcopal" identifies us as part of the apostolic succession, with a bishop as our elected chief pastor.

We remain in communion with other Episcopalians. We share fellowship with all those in any Province who recognize the authority of Scripture and the faith and order of historic Anglicanism.

Shortly thereafter, TEC issued a letter of inhibition, to which Bishop Iker replied three days later, stating that "the inhibition is of no force or effect, since the Bishop and Diocese, meeting in annual convention, constitutionally realigned with another province of the Anglican Communion on Saturday, Nov. 15, and are now constituent members of the Anglican Province of the Southern Cone." Bishop Iker further clarified his position, stating,

Katharine Jefferts Schori has no authority over me or my ministry as a Bishop in the Church of God. She never has, and she never will.

Since November 15, 2008, both the Episcopal Diocese of Fort Worth and I as the Diocesan Bishop have been members of the Anglican Province of the Southern Cone. As a result, canonical declarations of the Presiding Bishop of The Episcopal Church pertaining to us are irrelevant and of no consequence.

On December 5, 2008, TEC accepted Bishop Iker's November 24, 2008 renunciation and removed and released him from the obligations of all ministerial offices of TEC. On December 16, 2008, at a special meeting of the standing committee, the Corporation's board, and the chairman of the constitution and canons committee, the first item of discussion addressed parishes and individuals who wanted to stay with TEC. Of particular concern was the perception that the "Steering Committee of North Texas Episcopalians" and the " 'Remain Episcopal' folks" were using the official Diocesan shield "in lots of their publicity-in newspaper ads and on the web, etc.-identifying themselves boldly as 'the Episcopal Diocese of Fort Worth in the Episcopal Church U.S.A,' " which the meeting's attendees said was confusing and misleading. Those attending unanimously agreed to send a "cease and desist" letter regarding use of EDFW's official seal and shield in publicity. They then discussed the "very conflicted situation which now exists at All Saints' Church, Fort Worth."

5. 2009

Presiding Bishop Schori issued a "Notice of Special Meeting of the Convention of the Episcopal Diocese of Fort Worth, Saturday, February 7, 2009." In that notice, she stated that as there was no bishop nor any qualified members of the standing committee in the diocese, she had called the meeting "in consultation with the Steering Committee of faithful Episcopalians of that Diocese," to elect a provisional bishop and to elect or appoint members of the standing committee, executive council, and other officers, to adopt a budget, and to consider resolutions relating to "recent purported amendments to the Constitution and canons of the Diocese," as well as other resolutions relating to the TEC-affiliated diocese's organization and governance.

The emergency convention convened at Trinity Episcopal Church under Presiding Bishop Schori. After quorums were verified and the "parliamentary necessities were accomplished," the first order of business was to elect a provisional bishop. Edwin F. Gulick Jr., who was elected to the post, thereafter made appointments to various commissions and committees for the vacancies resulting from the schism. Bishop Gulick also appointed trustees for the Corporation, on the basis that the previous trustees' effective resignation occurred when they left TEC by the "irregular, illegal action of the convention in 2008."

In his deposition, Bishop Gulick acknowledged that the Corporation's board members were supposed to be elected one per year and, between sessions, replacements would be voted on by the board. And despite his inability to point to specific language authorizing EDFW to remove all of the trustees, he nevertheless explained that "in the unforeseen, unanticipated emergency moment," everything possible had been done to comply with EDFW's and TEC's constitutions and canons.

On April 14, 2009, the TEC parties adopted amended and restated articles of incorporation for the Corporation and filed them with the Texas Secretary of State. These amended and restated articles purported to return to the Corporation's original articles of incorporation (i.e., administration in accordance "with the Constitution and Canons of the Episcopal Diocese of Fort Worth and the Episcopal Church of the United States"), and listed Bishop Gulick, James Hazel, John Stanley, Robert Bass, Cherie Shipp, and Trace Worrell as the current members of the board of trustees.

At the 27th Annual Meeting of the Diocesan Convention on November 14, 2009, the TEC-affiliated EDFW ratified the actions of the February 7, 2009 special meeting, and after Bishop Gulick's resignation, C. Wallis Ohl was elected and installed as the TEC-affiliated EDFW's bishop. The same individuals who were put into place at the February 7, 2009 special meeting were elected to the TEC-affiliated diocese's standing committee and the Corporation's board of trustees. The convention also ratified the resolutions made and actions taken at the February 7, 2009 special meeting and brought EDFW's constitution and canons back into compliance with TEC's constitution and canons. Bishop Ohl testified that the faction headed by Bishop Iker was not the "Episcopal Diocese of Fort Worth," that he-not Bishop Iker-was the legitimate and properly elected EDFW Bishop, and that he, Hazel, Shipp, Worrell, Bass, and Stanley-and not Bishop Iker, Salazar, Patton, Virden, Barber, and Bates-were the Corporation's legitimate and properly elected trustees. See Episcopal Diocese , 422 S.W.3d at 647-49.

C. The Lawsuit

On the same day that the TEC parties' amended and restated Articles of Incorporation were filed-April 14, 2009-the TEC parties filed suit for conversion and violations of business and commerce code section 16.29. Additionally, the TEC parties sought declaratory and injunctive relief regarding who could act as EDFW's representatives and who had use and control of EDFW's real and personal property. See In re Salazar , 315 S.W.3d 279, 282 (Tex. App.-Fort Worth 2010, orig. proceeding).

1. Summary Judgment-First Round

The parties filed competing motions for summary judgment. As explained by the supreme court,

In its motion for summary judgment TEC argued, in part, that the actions of the Board of Trustees in amending the Fort Worth Corporation's articles of incorporation were void because the actions went beyond the authority of the corporation, which was created and existed as an entity subordinate to a Diocese of TEC. TEC argued that "[t]he secular act of incorporation does not alter the relationship between a hierarchical church and one of its subordinate units" and that finding otherwise "would risk First Amendment implications." The Diocese, on the other hand, argued that the case was governed by the Texas Non-Profit Corporation Act and the Texas Uniform Unincorporated Nonprofit Association Act; under those statutes a corporation may amend its articles of incorporation and bylaws; and TEC had no power to limit or disregard amendments to the Corporation's articles and bylaws.

Episcopal Diocese , 422 S.W.3d at 650 (footnotes omitted).

After the trial court granted summary judgment and issued a declaratory judgment for the TEC parties in 2011, stating that the changes made by Appellees to the Corporation's articles and bylaws were ultra vires and void, Appellees appealed directly to the supreme court. The heart of the dispute, as identified by the supreme court, was "whether the 'deference' (also sometimes referred to as the 'identity') or 'neutral principles of law' methodology should be applied to resolve the property issue." Id. at 649.

The court's opinion in the direct appeal issued in 2013. In it, the court reversed the trial court's judgment and remanded the case to the trial court to be considered under the neutral principles methodology. Id. at 647. In its opinion, the court stated that under this methodology, ownership of disputed property is to be determined by considering evidence such as the deeds to the properties, the terms of the local church charter (including articles of incorporation and bylaws, if any), the relevant provisions of governing documents of the general church and local church entities, the governing state statutes, and other items as applicable. Id. at 651-52 ("[O]n remand the trial court is not limited to considering only the four factors listed in Jones [v. Wolf , 443 U.S. 595, 99 S.Ct. 3020, 61 L.Ed.2d 775 (1979) ].... [t]he elements listed in Jones are illustrative."). It also referenced Masterson , which issued on the same day, as applicable to this case regarding church canons and Texas law. Id. at 653.

In Episcopal Diocese as well as in Masterson , the court established guidance for the case on remand. In Episcopal Diocese , the court observed, "[A]bsent agreement or conclusive proof of title to the individual properties and the capacities in which titles were taken, fact questions exist under neutral principles of law, at a minimum, about who holds title to each property and in what capacity." Id. at 652. The court also instructed,

While we agree that determination of who is or can be a member in good standing of TEC or a diocese is an ecclesiastical decision, the decisions by Bishops Gulick and Ohl and the 2009 convention do not necessarily determine whether the earlier actions of the corporate trustees were invalid under Texas law. The corporation was incorporated pursuant to Texas corporation law and that law dictates how the corporation can be operated, including determining the terms of office of corporate directors, the circumstances under which articles and bylaws can be amended, and the effect of the amendments.

Id. The court concluded that the record failed to conclusively show as a matter of law that the Corporation's trustees had been disqualified from serving as such at the relevant times, whether the 2009 appointments to the Corporation's board by Bishop Ohl were valid or invalid under Texas law, or whether, under Texas law, the actions taken by the trustees appointed by Bishop Ohl in 2009 were valid or invalid. Id. at 652-53.

2. Summary Judgment-Second Round

Upon remand to the trial court, the TEC parties filed an amended petition in which they renewed their severed claims. By this time the severed claims included not only conversion and business and commerce code section 16.29 violations but also breach of fiduciary duty, breach of trust, trespass to try title, and an action to quiet title. Additionally, the TEC parties had pleaded for the imposition of a constructive trust under a number of theories, including estoppel. They also continued to seek declaratory and injunctive relief and an accounting.

The parties once more filed competing motions for partial summary judgment.

a. Appellees' Motion and the TEC Parties' Response

In their motion, Appellees argued:

• that the deeds, the 1984 judgment, the Diocese's charters, and adverse possession vested the Corporation with title and control, that TEC's charters made no claim to title and only asserted an invalid trust, and that the TEC parties' pleadings conceded that title was in the Corporation;

• that state corporations and associations law requires adherence to the Corporation's and Association's bylaws, making Appellees the Corporation's elected trustees and Bishop Iker the chairman of the Corporation's board and depriving the TEC parties of standing when TEC's own charters prevented the TEC parties from convening the special convention upon which their claims were based;

• that state law prohibits an express, implied, or constructive trust interest for the TEC parties;

• that the same rules that allocated control to Appellees of the real property also applied to the funds, trusts, and endowments that the TEC parties sought; and

• that estoppel and quasi-estoppel did not apply because Appellees only wanted a declaration to be left alone.

The TEC parties responded that Appellees had judicially admitted that the Corporation held all property in trust for EDFW and its congregations, and since those entities were subordinate affiliates of the hierarchical church, the Corporation therefore held the property in trust for the TEC parties because they were the only parties recognized by TEC as those entities. They also argued, as they do on appeal, that the Dennis Canon, in addition to Appellees' words and actions prior to the schism, imposed a trust-express, contractual, or constructive-in their favor. And they argued that Appellees' adverse possession claim failed because there was no "adverse" interest until the 2008 schism.

b. The TEC Parties' Motion and Appellees' Response

In their summary judgment motion, the TEC parties contended:

• that because TEC had determined that Appellees did not represent EDFW and its congregations and that the TEC parties did represent them, the property held in trust by the Corporation was held in trust for the TEC parties;

• that Appellees had no right to control the Corporation because, in addition to the plain terms of the Corporation's bylaws, it was a subordinate entity of EDFW that only the TEC parties could control;

• that state associations law favored the TEC parties because local chapters are treated as constituents of larger organizations;

• that an express trust was created when EDFW agreed to TEC's rules in exchange for formation, membership, and property, including the Dennis Canon, but that even without an express trust, the TEC parties were entitled to a constructive trust;

• that Appellees' adverse possession claim failed because they did not meet all of the necessary elements to establish that claim;

• that Appellees were estopped from raising claims and defenses that contradicted their commitments, conduct, and prior statements to courts and other federal and state authorities;

• that, contrary to Appellees' assertion, the TEC parties did have standing; and

• that based on all of the above, the trial court should grant summary judgment on the TEC parties' trespass-to-try-title claim and their request for attorney's fees and for declaratory judgment.

Appellees responded that the supreme court had rejected the TEC parties' deference theory in favor of neutral principles, that there was no express or irrevocable trust in TEC's favor nor a contractual or constructive trust, that there was no breach of fiduciary duty, and that the TEC parties' remaining grounds were baseless.

c. Supplemental Motions

On March 2, 2015, the trial court, except as to claims involving All Saints Episcopal Church, granted Appellees' motion and denied the TEC parties' motion. The parties filed supplemental summary judgment motions to address the All Saints issues and agreed that the remaining claims in cause number 141-252083-11-the claims for attorney's fees, conversion, violations of business and commerce code section 16.29, damages for breach of fiduciary duty (as opposed to the predicate for a constructive trust), the action to quiet title, and for an accounting-should be severed and stayed.

In their summary judgment motion relating to All Saints Episcopal Church, Appellees argued that the Corporation held legal title to two of the All Saints properties-the sanctuary and parish hall on 5001 Crestline and the rectory on 5003 Dexter-by virtue of the 1984 judgment's property transfer and that beneficial title was held by the group affiliated with them. Ergo, applying the same reasoning as the trial court's previous summary judgment, Appellees were entitled to summary judgment as to those two properties. Appellees waived their claims to the remaining four All Saints properties "so as to resolve this case without a trial."

The TEC parties, in their All Saints summary judgment motion, asked the trial court to construe the deeds, to declare the TEC parties the properties' equitable owners, and to remove Appellees as the trustees or owners of legal title. The trial court disposed of the All Saints summary judgment motions in its final summary judgment.

3. Trial Court's Judgment

On July 24, 2015, the trial court signed a final judgment in this case, consolidating its prior orders.

In the judgment, the trial court granted Appellees' motion as to All Saints on the two pieces of property under dispute and denied the TEC parties' opposing motion. The trial court recited in its judgment that the claims for attorney's fees in both the original and severed action, the claims in the severed action for conversion, damages for breach of fiduciary duty, to quiet title and for an accounting, and the claims under business and commerce code section 16.29 remained pending in the original action, cause number 141-237105-09, and ordered that those remaining claims, "to the extent they are also pending in this cause," were dismissed without prejudice and preserved for litigation in cause number 141-237105-09.

The trial court made the following declarations in its judgment:

1. Neutral principles of Texas law govern this case, and applying such law is not unconstitutionally retroactive.[ ]

2. The Corporation of the Episcopal Diocese of Fort Worth and Defendant Congregations hold legal title to all the properties listed on Exhibit 1 attached to this Order, subject to control by the Corporation pursuant to the Diocese's charters.[ ]

3. The Episcopal Diocese of Fort Worth and the Defendant Congregations in union with that Diocese hold beneficial title to all the properties listed on Exhibit 1 attached to this Order.

4. Defendants Dr. F