When the author of this website began practicing, it was the habit to troop over to the courthouse every Friday to attend motion docket.  The primary motion heard on those days was the demurrer.  A demurrer was like a motion to dismiss but only raised the issue of sufficiency of the petition to state a cause of action.  Defendants often filed them to obtain further time to investigate and answer, which meant they were often autonomically overruled.  When they were actually heard, the court would read the petition or complaint and if the court thought enough facts were pled to state a cause of action overruled the demurrer.  Most were overruled but occasionally the court would act as a gatekeeper and require filing of an amended petition.  Demurrers were abolished soon thereafter as the state migrated to its clone of the Federal Rules of Civil Procedure.  Nevertheless, vestigial remnants of such doctrines persist.  The other rule still in effect in this state is that the order of the trial court will not contain reasons for the decision.  To enter an order that “sets forth reasons” is called a “speaking journal entry.”  An appellate court may disregard it.  If the parties want findings of fact and conclusions of law, they have to request them in advance of any ruling.  However, some appellate courts still have similar rules, for good reasons or out of habit.

In St. John Missionary Baptist Church v Flakes, Slip Op. (Tex. Civ. App. 2018), the congregational vote to terminate the pastor was not accepted by the church board members.  The pastor and the board continued to handle the assets of the church, including taking out a mortgage of almost a million dollars and preparing to sell other assets.  Some of the members filed suit to seek an injunction.  The trial court granted a motion to dismiss and plea to the jurisdiction (Texas has not adopted a clone of the Federal Rules of Civil Procedure).  The trial court’s order was a single sentence that referenced only one of the grounds put forward to support the motion.  The appeal was directed at the only grounds set forth in the single sentence order.  The appellate court, however, simply affirmed the trial court because there was no challenge to the other grounds for the motion to dismiss raised by the proponent of that motion even though it was also not mentioned by the trial court’s order.  That other ground was the Ecclesiastical Abstention Doctrine.  The appellate court ruled that without a challenge before it of an argument made by the movant in the trial court it was waived.  One paragraph containing a legal authority or two would have placed it before the appellate court.  The dissent was convinced that ordering additional briefing would not have been against the court’s rules.

Followers of Ecclesiastical Abstention Doctrine cases would immediately recognize that while a court because of the Ministerial Abstention Doctrine would not entertain an employment case, the exception might be if the employment case arose only from a violation of the church organizational documents in the process of hiring or termination.  This seems especially true when the procedural issue arises from a congregation-controlled church.  Of course, the other lesson is for counsel to brief all the arguments raised even if counsel believes some arguments deserve only cursory treatment.

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