      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                               ON MOTION FOR REHEARING



                                      NO. 03-15-00643-CV



                   Bryan D. “Doug” Lippert and Jane Lippert, Appellants

                                                 v.

                                    Chris Eldridge, Appellee


    FROM THE DISTRICT COURT OF COMAL COUNTY, 274TH JUDICIAL DISTRICT
       NO. C2014-1453C, HONORABLE BRUCE R. BOYER, JUDGE PRESIDING



                            MEMORANDUM OPINION


               We withdraw our opinion dated May 11, 2016 and substitute the following opinion

in its place, and we overrule appellee’s motion for rehearing.

               Bryan and Jane Lippert, homeowners in the deed-restricted community of Comal

Trace in Bulverde, Texas, and members of the Comal Trace Homeowners Association, appeal the

trial court’s summary judgment in favor of Chris Eldridge, volunteer president of the Association’s

Board of Directors. After a dispute about a fence in the Lipperts’ backyard escalated, the Lipperts

filed suit against the Association alleging, among other causes, tortious interference with property

rights. They later amended their pleading to add a cause of action for invasion of privacy against

Eldridge after he barred them from attending an Association meeting and allegedly made
comments about them at the meeting. The trial court granted Eldridge’s traditional motion for

summary judgment, in which he asserted that he was immune from liability under state and federal

“volunteer immunity” statutes. See 42 U.S.C. § 14503; Tex. Bus. Orgs. Code § 22.235. For the

following reasons, we will reverse the trial court’s summary judgment and remand this cause for

further proceedings.


                                           DISCUSSION1

               In his traditional motion for summary judgment, Eldridge asserted that he was

immune from liability as a volunteer under both state and federal law, citing the Texas Non-Profit

Corporations Act (the Texas Act), Tex. Bus. Orgs. Code § 22.235, and the “Federal Volunteer Act”

(the Federal Act), 42 U.S.C. § 14503. He cited Texas Rule of Civil Procedure 166a(c) as the basis

for his motion and the standard by which the trial court must consider it.2 See Tex. R. Civ. P. 166a(c)

(trial court shall render judgment if record at time of hearing shows that “there is no genuine issue




       1
         The parties are familiar with the facts, procedural history, and applicable standards of
review. Accordingly, we will not recite them here except as necessary to advise the parties of the
Court’s decision and the basic reasons for it. See Tex. R. App. P. 47.4.
       2
          We do not credit Eldridge’s assertion on appeal that his traditional motion was also a no-
evidence motion simply because one sentence therein stated, “There is no evidence to suggest that
Eldridge was acting in bad faith, failing to exercise ordinary care, or acting absent reasonable belief
that there [sic] actions were in the best interest of the corporation.” His motion was entitled
“Traditional Motion for Summary Judgment,” cited the standards and the rule applying only to
traditional summary judgments (Rule 166a(c)), and attached evidence attempting to conclusively
establish his right to the requested relief. See Hamlett v. Holcomb, 69 S.W.3d 816, 818–19 (Tex.
App.—Corpus Christi 2002, no pet.) (“When it is not readily apparent to the trial court that summary
judgment is sought under rule 166a(i) [the no-evidence rule], the appellate court will presume that
the motion is filed under the traditional summary judgment rule and analyze it accordingly.”).

                                                  2
of material fact and the moving party is entitled to judgment as a matter of law on the issues

expressly set out in the motion”).

               Eldridge attached to his motion his own affidavit in support of his claimed immunity

as a volunteer officer of the nonprofit Association, containing the following relevant statements3:


       1.      On January 27, 2015, we had a regular Association Board Meeting. Prior to
               the meeting, the other Board Members and I discussed Article IV Section 6
               of the By-Laws which indicates that owners involved in litigation with the
               Association are not members in good standing and may not participate in
               Association meetings and activities. The Board unanimously agreed that
               this applied to the Lipperts, who had sued the Association. Based on this
               discussion by the Board, I asked the Lipperts to step out of the room where
               the Board Meeting was to be held. . . . I was not aware at this time of
               the changes to the Texas Property Code which do not allow homeowners
               associations to keep a member from attending meetings.

       2.      All decisions I made as an officer were made in good faith, and I exercised
               ordinary care and sought the input of other board members, before making
               any decisions that are being challenged by Plaintiffs. I believe that all the
               decisions I have made as an officer were in the best interests of the
               Association.

       3.      While volunteering as a Board member for the Association, I did not take
               any action intending to cause any injury or harm to the Plaintiffs, nor did I
               commit criminal misconduct, act in a grossly negligent manner, or engage in
               reckless misconduct, or flagrant indifference to the rights or safety of others,
               specifically in regards to Plaintiffs.


               The Lipperts submitted evidence in response, including Doug Lippert’s (Doug)

affidavit in which he averred that Eldridge “drop[ped] his voice” and spoke softly or inaudibly when

he represented to him that he had consulted with Tina Jameson, an employee of the Association’s


       3
          We have altered the numbering of these statements from the paragraph numbers as they
appear in Eldridge’s affidavit.

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property-management company, and that Jameson was in agreement with the Board’s decision to

exclude the Lipperts from the meeting. Doug further averred that Eldridge’s actions led him to

believe that Eldridge “was lying” about what Jameson had advised and that he “ejected” the Lipperts

from the meeting right before it started, rather than in the 20 minutes during which the Lipperts

sat waiting for the meeting to begin, “with the intention of maximizing our public humiliation” and

to “use the public forum to make false and slanderous statements about the Lipperts.”

                The trial court heard Eldridge’s motion and granted it, and the Lipperts filed a motion

to reconsider, attaching deposition testimony from Jameson, in which she testified that, while she

did not specifically mention the Property Code,4 she advised Eldridge that it was unlawful to exclude

the Lipperts from attending the meeting and that Eldridge publicly announced to the meeting

attendees that the Lipperts had sued the Association and therefore could not attend the meeting. The

trial court held a hearing on the motion to reconsider and admitted the Jameson deposition5 but

ultimately denied the motion to reconsider.

                On appeal, the Lipperts contend that the trial court erred in granting Eldridge’s

summary-judgment motion because he had not established entitlement to summary judgment as a

matter of law under either of the cited “volunteer immunity” statutes and that, in any case, the

statutes do not provide immunity for intentional acts that are in violation of state or federal laws.




       4
         The Lipperts claim that by excluding them from the meeting, Eldridge violated the Texas
Property Code. See Tex. Prop. Code § 209.0051(c) (“regular and special board meetings [of property
owners’ associations] must be open to owners, subject to the right of the board to adjourn a board
meeting and reconvene in closed executive session . . . .”).
       5
           Eldridge does not appeal the trial court’s admission of the Jameson deposition.

                                                  4
They also contend that the trial court could not have relied on the conclusory statements in

Eldridge’s affidavit to support summary judgment in his favor, the issue to which we first turn.

               Statements are conclusory when they are not supported by any underlying facts,

and statements asserting mere legal conclusions are insufficient to establish the existence of a fact

issue. See Hall v. Bean, 416 S.W.3d 490, 494–95 (Tex. App.—Houston [14th Dist.] 2013, no pet.)

(citing Mercer v. Daoran Corp., 676 S.W.2d 580, 583 (Tex. 1984)). We hold that paragraphs 2 and

3 in Eldridge’s affidavit, as cited above, are conclusory; do not constitute competent summary-

judgment evidence; and may not support the trial court’s judgment. See id. (citing Burrow v. Arce,

997 S.W.2d 229, 235 (Tex. 1999)). Therefore, we consider whether paragraph 1 entitled Eldridge

to judgment as a matter of law under either of the cited statutes, resolving all doubts and reasonable

inferences in the Lipperts’ favor. See Nixon v. Mr. Prop. Mgmt. Co., 690 S.W.2d 546, 548 (Tex.

1985); see also M.D. Anderson Hosp. & Tumor Inst. v. Willrich, 28 S.W.3d 22, 23 (Tex. 2000)

(holding that motion for summary judgment must stand on its own merits and conclusively establish

movant’s cause of action or defense, and nonmovant need not respond to motion if movant’s

summary-judgment proof is insufficient as matter of law to support summary judgment).


The Federal Act

               The applicable provision of the Federal Act provides:


       [N]o volunteer of a nonprofit organization or governmental entity shall be liable for
       harm caused by an act or omission of the volunteer on behalf of the organization or
       entity if–

       (1) the volunteer was acting within the scope of the volunteer’s responsibilities in the
       nonprofit organization or governmental entity at the time of the act or omission; [and]


                                                  5
        ***

        (3) the harm was not caused by willful or criminal misconduct, gross negligence,
        reckless misconduct, or a conscious, flagrant indifference to the rights or safety of the
        individual harmed by the volunteer.


42 U.S.C. § 14503. The parties dispute whether immunity under this provision is an affirmative

defense on which Eldridge had the burden of proof. See Doctor v. Pardue, 186 S.W.3d 4, 8 (Tex.

App.—Houston [1st Dist.] 2005, pet. denied) (noting that charitable immunity has been treated as

affirmative defense that must be pleaded and proved by parties seeking its application); see also

Shoemake v. Fogel, Ltd., 826 S.W.2d 933, 939 (Tex. 1992) (stating that governmental immunity and

charitable immunity can be waived by failure to assert them as affirmative defenses). We conclude

that under the plain language of the federal statute (“no volunteer . . . shall be liable . . . if . . . . ,”

id. (emphasis added)), a defendant has the burden to prove all elements of his immunity as an

affirmative defense. See Johnson & Johnson Med., Inc. v. Sanchez, 924 S.W.2d 925, 927 (Tex.

1996) (“When a party moves for summary judgment based on an affirmative defense, the movant

must establish each element of its defense as a matter of law.”).

                The Lipperts contend that Eldridge did not conclusively establish the first element

because he was acting “ultra vires” by violating the Property Code and, therefore, not within

the scope of his responsibilities. However, we need not reach that issue because we conclude

that Eldridge’s summary-judgment evidence—specifically, paragraph 1 in his affidavit—did not

conclusively establish the third element of the immunity defense: that his exclusion of the Lipperts

from the meeting was not caused by “willful or criminal misconduct, gross negligence, reckless

misconduct, or a conscious, flagrant indifference” to the Lipperts’ rights, see 42 U.S.C. § 14503(a)(3),

                                                     6
particularly in light of the Jameson deposition and Doug’s affidavit and indulging reasonable

inferences and resolving doubts in their favor, see Nixon, 690 S.W.2d at 548. Accordingly, the trial

court erred in granting summary judgment in favor of Eldridge on the basis of the Federal Act.


The Texas Act

                The applicable section of the Texas Act provides:


       An officer [of a nonprofit corporation] is not liable to the corporation or any other
       person for an action taken or omission made by the officer in the person’s capacity
       as an officer unless the officer’s conduct was not exercised: (1) in good faith; (2) with
       ordinary care; and (3) in a manner the officer reasonably believes to be in the best
       interest of the corporation.


Tex. Bus. Orgs. Code § 22.235(a).6 As with the Federal Act, the parties dispute whether immunity

under the Texas Act constitutes an affirmative defense. Compare Priddy v. Rawson, 282 S.W.3d 588,

594 (Tex. App.—Houston [14th Dist.] 2009, pet. denied) (holding that director immunity under

different but similar section of business organizations code was not affirmative defense, based on

statutory language requiring person “seeking to establish liability of a director to prove . . .”

(emphasis added)), with Pardue, 186 S.W.3d at 8 (noting that charitable immunity is generally

affirmative defense). However, we need not resolve this conflict because even if the burden were

on the Lipperts to prove all three elements listed in the statute, Eldridge’s paragraph 1 did not

conclusively negate any of those three elements, see Dixon v. Houston Raceway Park, Inc.,


       6
          It is undisputed that Eldridge, as president of the Association, was an officer of the
Association. It is also undisputed that the Association is a nonprofit corporation under the Texas
Act and that section 22.235 applies to the Association. See Tex. Bus. Orgs. Code § 22.001(5)
(“‘Nonprofit corporation’ means a corporation no part of the income of which is distributable to a
member, director, or officer of the corporation, except as provided by Section 22.054.”).

                                                  7
874 S.W.2d 760, 762 (Tex. App.—Houston [1st Dist.] 1994, no writ) (“Once the movant has

produced competent evidence to negate a necessary element of the nonmovant’s cause of action, the

burden shifts to the nonmovant to introduce evidence that raises a fact issue with respect to the

element negated by the movant’s summary judgment evidence.”), particularly in light of Jameson’s

deposition and Doug’s affidavit and indulging reasonable inferences and resolving doubts in the

Lipperts’ favor, see Nixon, 690 S.W.2d at 548.

               Furthermore, the issues of ordinary care, good faith, and reasonable belief are

generally fact questions to be resolved by the factfinder and not on summary judgment unless they

are conclusively established, and paragraph 1 in Eldridge’s affidavit did not conclusively establish

any of these elements. See, e.g., Corral-Lerma v. Border Demolition & Envtl. Inc., 467 S.W.3d 109,

122 (Tex. App.—El Paso 2015, pet. filed) (holding that summary judgment was improper because

evidence created fact issue on whether party reasonably believed agent had apparent authority);

Adams v. Downey, 124 S.W.3d 769, 774 (Tex. App.—Houston [1st Dist.] 2003, no pet.) (noting that

movant on summary judgment fails to conclusively establish good faith when material facts relied

on to support it are disputed). On this record, a reasonable factfinder could have drawn inferences

or conclusions other than those that the trial court impliedly drew in favor of Eldridge. Resolving

all reasonable inferences and resolving doubts in the Lipperts’ favor, we conclude that the trial court

erred in granting Eldridge summary judgment under the Texas Act. See Nixon, 690 S.W.2d at 546.


                                          CONCLUSION

               For the foregoing reasons, we reverse the trial court’s summary judgment and remand

this cause for further proceedings consistent with this opinion.

                                                  8
                                              __________________________________________

                                              David Puryear, Justice

Before Justices Puryear, Goodwin, and Field

Reversed and Remanded on Motion for Rehearing

Filed: October 12, 2016




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