### T E X A S C O U R T O F A P P E A L S , T H I R D D I S T R I C T , A T A U S T I N

ON MOTION F OR REHEARING

NO. 03-15-00643- CV

Bryan D. “Doug” Lip pert and Jane Lip pert, A ppellan ts

v. Chris Eld ridge, Appellee

F ROM TH E DISTRI CT COURT O F CO MAL CO UNTY, 274 TH JUDICI AL DISTRICT NO. C2014 -14 53C, H ONO RAB LE B RUCE R. B OY ER, JUDGE P RESIDING

M E M O R A N D U M O P I N I O N

We withdraw our opinion da ted May 11, 2016 and substitut e the following opinion in its pl ace , and we overr ule appe llee’s motion for r ehea ring

. Br y an and J ane L ippert, homeowner s in t h e d eed- restric ted community of Comal
Trac e in B ulverde , Texas, and member s of the Comal Tra ce H omeowner s Association, appe al the trial court’s summary judgme nt in favor of Chris Eldridg e, volunteer president of the Association’s
Boa rd of Direc tors. After

a dispute about a fenc e in the L ipperts’ backy ard esca lated, the L ipperts filed suit ag ainst the Association alleg ing, among other cause s, tortious interfer ence with property rig hts. They later am en d ed t h eir pleading to add a cause of action for invasion of privacy ag ainst Eldridg e afte r he barr ed them fr o m attending an Association meeting and alleg edly madecomments about them at the meeting

. T h e trial court g rante d Eldridg e’s traditional motion for

summary judgme nt, in which he asser ted that he was immune from liability under state and fede ral “volunteer immunit y ” statutes. See 4 2 U. S

. C

. § 14503; Tex. Bus. Org s. Code § 22.235. For the following rea sons, we will reve rse the trial court’s summary ju d gm en t and rema nd this cause for further proce eding s.

DISCUSSIO N 1
I n his traditional motion for summary judgme nt, Eldri d ge asserted that he was immune from liability

as a volunteer under both sta te and fede ral law, citing the Texas Non-Profit Corporations Act (the Texas Act), Tex. Bus. Org s. Code § 22.235, and the “F eder al Volunteer Act” (the Fe dera l Act), 42 U.S.C. § 14503. He cited Texas Rule of Civil Procedur e 166a(c ) as the basis
f o r h is mo ti o n a

n d th e s ta n d a r d b y w h ic h th e tr ia l c o u

r t mu s t c o n s id e r it

. S

e e T e x. R. Ci v . P. 1 6 6 a ( c ) 2 (trial court shall rende r judgme nt if rec ord at time of hea ring shows that “ther e is no g enuine issue

Th e p ar t i es are familiar with the fac ts, proce dural history , and applicable standards of 1 revie w. Acc ording ly , we will not rec ite them here except as nec essar y to advise t he parties of t he Court’s decision and the basic re asons for it. See Tex. R. App. P . 47.4. We do not cre dit Eldridg e’s asser tion on appea l that his traditional motion was also a no- 2 evidenc e motion simply beca use one sentenc e there in sta ted, “The re is no evidenc e to sug g est that Eldridg e was acting in bad faith, failing to exercise ordinary car e, or acting absent rea sonable belief that there [si c] actions wer e in the best interest of the corpor ation.” His motion wa s entitled “Tra ditional Motion for Summary J udg ment,” cited the standards and the rule apply ing only to traditional summary judgme nts (Rule 166a(c )), and attache d ev idence attempting to conclusively establish his rig ht 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 rea dily appar ent to the trial court that summary judgme nt is soug ht unde r rule 166a(i) [t he no-evide nce rule], the appellate court will presume that the motion is filed under the tra ditional summ ary judgme nt rule and a

naly ze it accor dingly .”). 2of materia l fac t and the moving part y i s en t itled to judgme nt as a matter of law on the issues

expressly set out in the motion”). Eldridg e attache d to his motion his own aff idavit in support of his claimed immunit y as a voluntee r off

icer of the nonprof

it Association, containing the following rele vant statements : 3

1. On J anuar

y 27, 2015, we had a reg ular Association Boa rd Meeting

. Prior to the meeting , the other B oard Me mbers and I discussed Article I V Section 6 of the By -L aws which indicates that owner s involved in litigation with the Association are not members in g ood standing and may n o t p articipa te in Association meeting s and activ i t i es. The Boa rd unanimously ag ree d that t h i s appli ed to the L ipperts, who had sued the Association. Ba sed on t h i s discussion by

the B oard, I

asked the L ipperts t o step out of t he room wher e the Boa rd Meeting was to be held.

. . . I was n o t aw are at this time of the chang es to the Texas Property Code which do not allow homeowner s associations to kee p a member from attending meeting s. 2. Al l decisions I made as an officer wer e made in g ood faith, and I exercised ordinary car e and soug ht the input of other board members, b ef o re making any decisions that are being challeng ed b y P l aintiffs. I believe that all the d ec i s i o ns I have made as an office r wer e in the best interests of t h e Association.
3. Whil e volunteering as a Boa rd member for the Association, I did not t ak e an y ac t ion intending to cause any injury or harm to the Plaintiffs, nor d i d I commit criminal misconduct, act in a g rossly neg lige nt manner , or eng ag e in rec kless misconduct, or flag rant indiffer ence to the rig hts or safe ty of others, specific ally

in reg ards to Plaintiffs.

The L ipperts submitt ed evidenc e in response, i ncluding Doug L ippert’s (Doug ) aff idavit in which he aver

red that Eldridg e “drop[ped] his voice” and spoke softly or inaudibly when he re prese nted to him that he had consulted with Tina J ameson, an employ ee of the Associa tion’s

We have al t er ed the num bering of t hese statements from the para g raph numbers as t hey 3 appea r in Eldridg e’s a ffidavit. 3proper

ty -mana g ement company , and that J ameson was in ag ree ment with the Board’ s d ec i s i o n t o exclude the L ipperts from the meeting

. Doug further aver red that Eldridg e’s actions led him to believe that Eldridg e “wa s ly ing” about what J ameson had advised and that he “eje cted” the L ipperts from the meeting rig ht befor e it started, rathe r than in the 20 minutes during which the L ipperts
sat waiting for the meeting to beg in, “with the intention of maxi miz ing our public humiliation” and to “use the public f

orum to make fa lse and slande rous statements about the L ipperts.” The trial court hear d Eldridg e’s motion and g rante d it, and the L ipperts filed a motion
to rec onsider, attac hing deposition testimony from J ameson, in which she testified t hat, whil e she did not specific ally mention the Property Code, she advised Eldridg e that it was unlawful to exclude 4
the L ipperts from att en ding the meeting and that Eldridg e publicly announce d to the meeting attendee s that the L ipperts had sued the Association and there fore could not attend the meeting

. The trial court held a hear ing on the motion to rec onsider and admit t ed the J ameson deposition but 5 ultimately

denied the motion to rec onsider.
On appea l, the L ipperts contend that the trial court err ed in g ranting Eldridg e’s
summary -judg ment motion beca use he had not established entitl ement to s ummary judgme nt as a

m at t er of law under either of the cited “volunteer immunit y ” statutes and that, in any cas e, t h e
statutes do not provide immunit y for intentional acts that are in viol at i o n o f s tate or fede ral laws.

The L ipperts claim that by excluding them from the meeting , Eldridg e violated the Texas 4 Property Code. See Tex. Prop. Code § 209.0051(c) (“r egular and specia l board meeting s [of proper ty owner s’ associa tions] must be open t o owner s, subject t o the right of the boa rd to adjourn a

board meeting and re convene in closed executive session . . . .”)

. Eldridg e does not a

ppeal the tr ial court’s a dmission of the J ameson de position. 5 4They also contend that the trial court could not have relied on t he conclusory statements in

Eldridg e’s a ffidavit to support summary judgme nt in his favor, the issue to which w e first turn.
Statements are conclusory when they are not s upported by any underly ing fac ts, and statements asser

ting mere leg al conc lusions are insuffic ient to establish the exis tence of a fac t issue. See Hall v. Bean , 416 S.W .3d 490, 494–95 (Tex. App.—Houston [14t h Dist.] 2013, no pet.) (citing Merc er v. Daoran Corp. , 676 S.W .2d 580, 583 (Tex. 1984)). We hold that para g raphs 2 and
3 in Eldrid ge’ s aff

idavit, as cited above, are conclusory ; do not constitute competent summary judgme nt evidenc e; and may not support the trial court’s judgme nt. See id. (citing Burrow v. Arce , 997 S.W .2d 229, 235 (Tex. 1999) ). There fore , we consider whether para g raph 1 entitled Eldridg e
to judgme nt as a matter of law under either of the cited statutes, resolving all doubts and rea sonable infere nces in the L ipperts’ 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. W illri ch , 28 S.W .3d 22, 23 (Tex. 2000) (holding that motion for summary judgme nt must stand on its own merits and conclusively establish
movant’s cause of action or defe nse, and nonmovant need not respond to motion if movant’s
summary -judg ment proof is insufficie nt as matter of law to support summary

judgme nt).

The Federal Act

The a pplicable pr ovision of the Fe dera l Act provides:
[N] o volunteer of a nonprofit org anization or g overnme ntal entity shall be liable for harm cause d by an act or omission of the volunteer on behalf of the org anization or entity if– (1) the volunteer was acting within the scope of the volunteer’ s responsibilities in the n o n p r o f it o r g a n iz a ti o n o r g o v e r

n me n ta l e n ti ty a

t th e ti me o f th e a c t o r o mi s s io n ; [a n d ]

5* * *

(3) the harm was not cause d by willful or criminal misconduct, g ross neg lige nce, rec kless misconduct, or a conscious, flag rant indiffer ence to the rig hts or safe ty of the individual harmed by

the volunteer

.

4 2 U.S .C. § 14503. The parties dispute whether immunit y under this provision is an aff i rm at i v e defe nse on which Eldr idge 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 char itable immunity has bee n trea ted as aff irmative defe nse that must be pleade d and proved by parties seeking its application); see also Shoemak e v. Fogel, Ltd. , 826 S.W .2d 933, 939 (Tex. 1992) (stating that g overnme ntal immunit y and char itable immunit y can be waived by failure to asser t them as aff

irmative defe nses). We conclude that under the plain lang uag e of the federa l statute (“no volunteer .

. . shall be li able

. . . i f

. . . . ,” id. (empha sis adde d )) , a d efe ndant has the burden to prove all elements of his immunit y as an aff irmative defe nse. S

ee Jo hnson & Johnson Med., Inc. v. Sanchez , 924 S.W .2d 925, 927 (Tex. 1996) (“When a party moves fo r sum mary judgme nt based on an affirmative defense , the m ovant must establish each e lement of its defe nse as a matter of la

w.”)

. The L ipperts contend that Eldridg e did not conclusively establish the first element beca use he was acting “ultra vires” by violating the Property Code and, there fore, n o t within the scope of his responsibilities. How ever , we need not rea ch that issue beca use we conclude that Eldridg e’s summary -judg ment evidenc e—spec ifically , p ar ag raph 1 in his aff idavit—did not conclusively establish the third element of the immunit y defe nse: that his exclusion of the L ipperts from the meeting was not cause d b y “w i l l ful or criminal misconduct, g ross neg lige nce, rec kless
mi s c o n d u c t, o r a c o n s c io u s , f

la g r a n t in d if f e r e n c e ” to th e L ip p e r

ts ’ r ig h ts , s e e 4 2 U

. S. C. § 1 4 5 0 3 ( a ) ( 3 ) ,
6particula

rly i n l i ght of the J ameson deposition and Doug ’s aff idavit and indulging rea sonable infere nces and resolving doubts in their favor , see Nixon , 690 S.W .2d at 548. Acc ording ly , the trial
court e rre d in gr anting summary judgme nt in favor of

Eldridg e on the ba sis of the Fe dera l Act.

The Texas Act The a

pplicable se ction of the Te x as Ac t provides:

An office r [of a nonprofit corpor ation] is not liable to the cor poration or any other person f or an a ction taken or

omission made by

the offic er in the pe rson’s ca pacity as an office r unless the office r’s conduct was not exercised: (1) in g ood faith; (2) with ordinary car e; and (3) in a manner t h e o ff icer rea sonably believes to be in the best interest of the corpor ation.

Tex. Bus. Org s. Code § 22.235(a)

. As with the Fe dera l Act, the parties dispute whether immunit y 6

u n d e r th e T e xa s A c t c o n s ti tu te s a n a f f ir ma ti v e d e f e n s e
. Co m

p a r e P r id d y v
. R a ws o n , 2 8 2 S. W. 3 d 5 8 8 , 594 (Tex. App.—Houston [14t h Dist.] 2009, pet. denied) (holding that direc t o r i mmunity under differ ent but simil ar section of busi ness orga nizations code was not aff irmative defense, based on statutory lang uag e requiring person “see king to establish liability of a direc tor to prove . . .” (empha sis added) ), with Pardue , 186 S.W .3d at 8 (noting that char itable immunit y is g en er al l y aff irmative def

ense) . Howeve r, we need not r esolve this conflict because even if the burde n wer e

on the L ipperts to prove all three elements listed in the statu t e, E l dridg e’s para g raph 1 did not conclusively neg ate an y of those three elements, see Dixon v. Houston Race way Park, Inc. ,

I t is undisputed that Eldridg e, as president of the Associa t i o n , was an office r of the 6 Association. I t is also undisputed that the Association is a non p ro fi t co rp oration under the Tex as Act and that section 22.235 applies to the Association. See Tex. Bus. Org s. C o d e § 2 2

. 0 01(5) (“‘ Nonprofit corpor ation’ mea ns a cor poration no par

t of the income of

which is distributable to a member, dire ctor, or of

fice r of the c orpora tion, ex cept a s provided by Section 22.054.”). 7874 S.W .2d 760, 762 (Tex. App.—Houston [1st Dist.] 19 9 4 , no writ) (“O nce the movant has

produce d competent evidenc e to neg ate a nece ssary element of the nonmovant’s cause of action, the burden shifts to the nonmovant to introduce evidenc e that raises a fac t is s u e with respe ct to the element neg ated by the movant’s summary judgme nt evidenc e.”) , particula rly in light of J ameson’s deposition and Do u g ’s aff idavit and indulging rea sonable infere nces and resolving doubts in the
L ipperts’ fa

vor, see Nixon , 690 S.W .2d at 548.
Fur thermore , the i s s u es o f ordinary car e, g ood faith, and rea sonable belief are
g ener ally fac t que stions to be resolved by the fac tfinder and not on summary judgme nt unle ss the y

are conclusively established, and para g raph 1 in E ldridg e’s aff idavit 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 judgme nt was improper beca use evidenc e cre ated fac t issue on whether party rea son ab ly believed ag ent had appar ent authority ); Adams v. Downey , 124 S.W .3d 769, 774 (Tex. App.—Houston [1st Dist.] 2003, no pet.) (noting that
movant on summary judgme nt f ails to c onclusively establish g ood faith when materia l f acts relied

on to support it a

re disputed). On this re cord, a rea sonable fac tfinder could have draw n infere nces

or conc lusions other than those that the trial c ourt impliedly drew in f avor of Eldridg e. Resolving all rea sonable infere nces and resolving doubts in the L ipperts’ favor , we conclude that the trial court

err ed in g ranting Eldridg e summary judgme nt under the Texas Act. See Nixon , 690 S.W .2d at 546.

CONCLUSION
For the fore g oing rea sons, we reve rse the trial court’s summary judgme n t and rema nd this cause f

or fur ther proc eeding s consistent with this opi nion.

8__________________________________________ David Pury ear , J ustice
Be fore J ustices Pury ear , Goodwin, and F ield
Reverse d and Remande d on Motion for Rehea ring Filed: Oc tober 12, 2016

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