Bryan D. "Doug" Lippert and Jane Lippert v. Chris Eldridge
03-15-00643-CV
| Tex. App. | Oct 12, 2016Background
- Bryan and Jane Lippert, homeowners and members of Comal Trace Homeowners Association, sued the Association and its volunteer president, Chris Eldridge, after he excluded them from a board meeting and allegedly made remarks about them. Claims included tortious interference and invasion of privacy.
- Eldridge moved for traditional summary judgment asserting volunteer immunity under the Federal Volunteer Act (42 U.S.C. § 14503) and the Texas Non-Profit Corporations Act (Tex. Bus. Orgs. Code § 22.235), attaching his affidavit describing board discussion and his good-faith actions.
- The Lipperts opposed, submitting Doug Lippert’s affidavit alleging public humiliation and deposition testimony of Tina Jameson (Association property-manager employee) that she told Eldridge excluding the Lipperts was unlawful and that he announced their litigation to attendees.
- The trial court granted Eldridge’s summary-judgment motion and denied the Lipperts’ motion for reconsideration after admitting Jameson’s deposition; Eldridge did not appeal admission of that deposition.
- On appeal, the court considered whether Eldridge’s affidavit contained conclusory statements and whether either statute conclusively protected him as a matter of law, resolving doubts and inferences in the Lipperts’ favor.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Eldridge’s affidavit contained nonconclusory evidence sufficient for summary judgment | Lippert: Eldridge’s affidavit is conclusory (good faith, ordinary care) and insufficient | Eldridge: Affidavit shows he acted in good faith, with ordinary care, and in best interest of Association | Court: Paragraphs stating good faith/ordinary care were conclusory and inadequate; cannot support summary judgment |
| Whether Federal Volunteer Act immunity applies | Lippert: Exclusion may have been willful/reckless or unlawful, so immunity does not apply | Eldridge: Acted within scope as volunteer and not guilty of willful/criminal/grossly negligent conduct | Court: Eldridge failed to conclusively establish the statute’s third element (no willful/criminal/gross negligence); summary judgment improper under Federal Act |
| Whether Texas nonprofit-officer immunity applies (Tex. Bus. Orgs. Code §22.235) | Lippert: Fact issues exist on good faith, ordinary care, reasonable belief; statute doesn’t bar intentional unlawful acts | Eldridge: Affidavit shows he met the statute’s three-element test for officer immunity | Court: Paragraph 1 did not conclusively establish good faith/ordinary care/reasonable belief; these are fact questions—summary judgment improper under Texas Act |
| Burden of proof for immunity defenses | Lippert: Implied burden on defendant to prove immunity elements | Eldridge: (argued immunity) | Court: For Federal Act, immunity is an affirmative defense and defendant must prove elements on summary judgment; for Texas Act court did not decide burden but found movant’s evidence insufficient |
Key Cases Cited
- Hall v. Bean, 416 S.W.3d 490 (Tex. App.—Houston [14th Dist.] 2013) (conclusory affidavits insufficient for summary judgment)
- Mercer v. Daoran Corp., 676 S.W.2d 580 (Tex. 1984) (legal conclusions do not establish fact issues)
- Burrow v. Arce, 997 S.W.2d 229 (Tex. 1999) (conclusory evidence cannot support summary judgment)
- Nixon v. Mr. Prop. Mgmt. Co., 690 S.W.2d 546 (Tex. 1985) (summary judgment doubts and inferences resolved for nonmovant)
- M.D. Anderson Hosp. & Tumor Inst. v. Willrich, 28 S.W.3d 22 (Tex. 2000) (movant must conclusively establish right to summary judgment)
- Doctor v. Pardue, 186 S.W.3d 4 (Tex. App.—Houston [1st Dist.] 2005) (discussion of charitable immunity as affirmative defense)
- Shoemake v. Fogel, Ltd., 826 S.W.2d 933 (Tex. 1992) (governmental/charitable immunity can be waived if not pleaded)
- Johnson & Johnson Med., Inc. v. Sanchez, 924 S.W.2d 925 (Tex. 1996) (movant asserting affirmative defense on summary judgment must prove each element)
- Priddy v. Rawson, 282 S.W.3d 588 (Tex. App.—Houston [14th Dist.] 2009) (statutory language may inform whether immunity is affirmative defense)
- Dixon v. Houston Raceway Park, Inc., 874 S.W.2d 760 (Tex. App.—Houston [1st Dist.] 1994) (movant who negates an element shifts burden to nonmovant to raise fact issue)
- Corral-Lerma v. Border Demolition & Envtl. Inc., 467 S.W.3d 109 (Tex. App.—El Paso 2015) (issues of reasonable belief and apparent authority are factual)
- Adams v. Downey, 124 S.W.3d 769 (Tex. App.—Houston [1st Dist.] 2003) (good faith typically is a fact question)