AFFIRM; Opinion Filed March 5, 2019.




                                                        In The
                                      Court of Appeals
                               Fifth District of Texas at Dallas
                                               No. 05-17-01406-CV

                                 GU KWANG LEE, Appellant
                                          V.
                         GREG PAIK AND MOON CHEOL PAIK, Appellees

                             On Appeal from the County Court at Law No. 5
                                         Dallas County, Texas
                                 Trial Court Cause No. CC-13-01030-E

                                    MEMORANDUM OPINION
                           Before Justices Bridges, Partida-Kipness, and Carlyle
                                    Opinion by Justice Partida-Kipness
          Appellant Gu Kwang Lee appeals the declaratory judgment in appellees’ favor. We affirm.

                                                 BACKGROUND

          Hope Presbyterian Church of Dallas is organized as a non-profit corporation pursuant to

Chapter 22 of the Texas Business Organizations Code and is governed by its articles of

incorporation. The articles of incorporation provided for an initial board of three trustees: (1)

Reverend John Kim, (2) Moon Cheol Paek, and (3) Don Chae.1 Appellee Moon Cheol Paik has




   1
       The parties in this case use the terms “trustees” and “directors” interchangeably.
been a trustee of Hope Church since its formation in 1993. Appellee Greg Paik and John Park2

became trustees of Hope Church in 2007.

        In 2002, Lee was hired as a part-time and temporary pastor for Hope Church. On March

29, 2009, Lee and others purportedly conducted an election in which they declared Lee to be

president of Hope Church and removed Moon Paik and Greg Paik from the Board (March 2009

meeting). On April 22, 2009, Moon Paik and Greg Paik sent Lee a letter terminating him as an

employee of Hope Church. On February 20, 2013, Moon Paik and Greg Paik filed a petition

against Lee, John Park, and Joon Gil Park alleging claims for declaratory action, trespass to real

property, and injunctive relief. By Rule 11 Agreement dated November 4, 2014, the parties in the

case were reduced to Greg Paik and Moon Paik as the plaintiffs and Lee as the defendant. In

addition, the Rule 11 agreement reduced the causes of action to one cause of action for declaratory

relief aimed at determining: “(i) whether or not the elections of 2009 were valid, legal and

effective; and (ii) the Church’s effective by-laws and/or articles of incorporation on the ‘control’

issues presented, and (iii) who are the proper controlling parties of the Church, and/or other related

issues in this regard.”

        A bench trial took place on August 7 and 8, 2017, and the trial court rendered a judgment

in favor of Moon Paik and Greg Paik. The final judgment provided as follows:

                 (a) All matters in controversy presented at trial and in the pleadings of
                         this case may be resolved by looking to the laws of the State of
                     Texas, including the laws within the Texas Business Organization Code;

                 (b) Based on item “(a)” above, the Court need not (and did not) refer to any
                     ecclesiastical law or theological doctrine in making its determination in
                     this case;

                 (c) Defendant Gu Kwang Lee (“Lee”) is not, and has never been, a member
                     of Hope Presbyterian Church of Dallas (“Hope”) or its Board of

    2
     The spelling of certain names is not consistent throughout the pleadings. John Park is referred to as John Pak,
Jung Suh Park and Jung Seo Park (“John Park”).


                                                       –2–
                    Trustees or Directors (the “Board”). Accordingly, Defendant Lee does
                    not have, and has never had, standing to challenge the actions of Hope
                    or its Board;

                (d) The actions of Defendant Lee and those in attendance at the purported
                        Hope meetings in 2009, in seeking to conduct an election to change
                    the composition of Hope’s Board and its Articles of Incorporation
                    (“Articles”), were not authorized by Hope or its Board. Accordingly,
                    Defendant Lee’s actions were without merit or legal effect and are and
                    were null and void;

                (e) Plaintiffs Moon Cheol Paik and Greg Paik are members of Hope’s
                    Board and its congregation;

                (f) Defendant Lee was terminated as pastor and as an employee of Hope in
                    April 2009; and

                (g) Defendant Lee does not have any lawful right of possession of any of
                    Hope’s real or personal property or to make decisions related thereto.

Lee then filed a notice of appeal in which he appealed sections (c), (d), (e), (f), and (g) of the final

judgment.

                                             ANALYSIS

        Lee argues that the trial court erred in making the findings listed in sections (c) through (g)

of the final judgment because (1) there was no evidence to support these findings and (2) the

findings were against the great weight and preponderance of the evidence as to be clearly wrong

and unjust.



        A.      Standard of Review

        When, as in this case, neither party requests findings of fact and conclusions of law

following a bench trial, we will imply all findings necessary to support the trial court’s judgment.

See George Joseph Assets, LLC v. Chenevert, 557 S.W.3d 755, 764 (Tex. App.—Houston [14th

Dist.] 2018, pet. denied). If the record contains the reporter’s record, implied findings may be

challenged on appeal for legal and factual sufficiency in the same manner as a challenge to jury

findings or express findings of fact. Id.
                                                  –3–
        In this case, the trial court did not issue separate findings of fact and conclusions of law

but did include in its judgment express findings as noted in sections (c) through (g) as described

above. Generally, a trial court should not include findings of fact in its judgment. See TEX. R.

CIV. P. 299a. Because the record does not contain any additional findings of fact or conclusions

of law, the findings in the judgment have probative value and will be treated as valid findings.

Chenevert, 557 S.W.3d at 764. We must uphold the trial court’s judgment on any theory of law

applicable to the case if the evidence supports the trial court’s findings. Id. at 765.

        On appeal from the trial court’s judgment in a bench trial, the legal sufficiency of the

evidence to support the judgment may be challenged as in any other case. See Joplin v. Borusheski,

244 S.W.3d 607, 610 (Tex. App.—Dallas 2008, no pet.). When we review evidence for legal

sufficiency (or no evidence) after a bench trial, we consider all of the evidence in the light most

favorable to the trial court’s judgment. See City of Keller v. Wilson, 168 S.W.3d 802, 822 (Tex.

2005). We credit any favorable evidence if a reasonable factfinder could and disregard any

contrary evidence unless a reasonable factfinder could not.            Id. at 821.    The final test

for legal sufficiency is “whether the evidence at trial would enable reasonable and fair-minded

people to reach the verdict under review.” Id. at 827.

        In reviewing the factual sufficiency of the evidence, we examine the entire record,

considering both the evidence in favor and contrary to the challenged findings. Chenevert, 557

S.W.3d at 765. We may set aside the verdict for factually insufficient evidence only if the verdict

is so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust. Id.

The party asserting the evidence is factually insufficient must establish that the finding is against

the great weight and preponderance of the evidence. Id. In assessing the evidence, we do not act

as factfinder in that we may not pass on the credibility of the witnesses or substitute our judgment

for that of the factfinder. Id.

                                                 –4–
       B.       Validity of 2009 Meetings

       In the first issue, Lee argues that the trial court erred in finding that the actions of Lee and

those in attendance at the March 2009 meeting were not authorized by Hope Church or its Board.

We disagree. Article six of the Hope Church’s articles of incorporation provides that Hope Church

shall have three initial trustees and it provides the names and addresses of the initial board of

trustees. However, neither article six nor any other article addresses how replacement trustees are

selected or elected. As Hope Church was formed pursuant to the Texas Non-Profit Corporation

Act, we turn to the Texas Business Organization Code for guidance in this matter:

       Directors other than the initial directors are elected, appointed, or designated in the
       manner provided by the certificate of formation or bylaws. If the method of
       election, designation, or appointment is not provided by the certificate of formation
       or bylaws, directors other than the initial directors are elected by the board of
       directors.

See TEX. BUS. ORGS. § 22.206. In this case, there is no evidence that either Moon Paik or Greg

Paik attended the March 2009 meeting. According to the meeting minutes from the March 2009

meeting and trial testimony, the attendees of the meeting included Lee, John Park, Sun Mi Shin

and Gui Hee Lee, making John Park the only director present at the March 2009 meeting. Thus,

because two of the three directors did not attend the March 2009 meeting, the “election” of the

directors at the March 2009 meeting was neither authorized nor valid since it failed to comply with

section 22.206 of the Business Organizations Code.

       The trial court found that the March 2009 meeting was invalid. Lee also argues this was

contrary to article eight of Hope Church’s articles of incorporation because it requires approval by

2/3 “of the votes at a membership meeting where are quorum is present” to “alter, amend, or




                                                 –5–
repeal” the Articles.3 We note, however, that article six of the articles of incorporation only

addresses and defines the “initial trustees.” For this reason, article eight is not implicated. There

is no need to alter or amend article six because it only addresses the initial trustees.

           For all the reasons described above, the evidence is legally and factually sufficient to

support the trial court’s finding that the “actions of Defendant Lee and those in attendance at the

purported Hope meetings in 2009, in seeking to conduct an election to change the composition of

Hope’s Board and its Articles of Incorporation (“Articles”), were not authorized by Hope or its

Board.” Accordingly, we overrule Lee’s first issue.4

                                                 CONCLUSION

           On the record of this case, we affirm the trial court’s judgment.




                                                                /Robbie Partida-Kipness/
                                                                ROBBIE PARTIDA-KIPNESS
                                                                JUSTICE


171406F.P05




3
    Article eight provides as follows:

    The power to alter, amend, or repeal these Articles of Incorporation shall be vested in the members of the
corporation. An affirmative vote by at least two-thirds (2/3) of the votes at a membership meeting where a quorum is
present shall be required for the purpose of this Article.
       4
      Because we have affirmed the first issue, we need not reach the remaining issues. Lee conceded this both in his
briefing and during oral argument. See Appellant’s Brief (“The trial court’s judgment regarding issues 2, 3, 4 and 5
is premised on its finding regarding issue 1. If the court had not found issue 1 in Appellees’ favor, there would be no
basis for its findings on issues 2, 3, 4 and 5.”).
                                                         –6–
                               Court of Appeals
                        Fifth District of Texas at Dallas
                                       JUDGMENT

 GU KWANG LEE, Appellant                             On Appeal from the County Court at Law
                                                     No. 5, Dallas County, Texas
 No. 05-17-01406-CV          V.                      Trial Court Cause No. CC-13-01030-E.
                                                     Opinion delivered by Justice Partida-
 GREG PAIK AND MOON CHEOL PAIK,                      Kipness. Justices Bridges and Carlyle
 Appellees                                           participating.

     In accordance with this Court’s opinion of this date, the judgment of the trial court is
AFFIRMED.

        It is ORDERED that appellee GREG PAIK AND MOON CHEOL PAIK recover their
costs of this appeal from appellant GU KWANG LEE.


Judgment entered this 5th day of March 2019.




                                               –7–
