Penley v. C.L. Westbrook, Jr.

• Decision Date: 20 May 2004
• Docket Number: No. 2-02-260-CV.,2-02-260-CV.
• Citation: 146 S.W.3d 220
• Parties: Peggy Lee PENLEY, Appellant, v. C.L. WESTBROOK, Jr., Appellee.
• Court: Texas Court of Appeals

146 S.W.3d 220

Peggy Lee PENLEY, Appellant, v. C.L. WESTBROOK, Jr., Appellee.

No. 2-02-260-CV.

Court of Appeals of Texas, Fort Worth.

May 20, 2004.

Rehearing and Rehearing En Banc Overruled August 12, 2004.

Appeal from the 67th District Court, Tarrant County, Don J. Cosby, J Darrell L. Keith, Law Firm of Darrell L. Keith, P.C., Christopher D. Montez, Fort Worth, for appellant.

J. Wade Birdwell, James G. Stouffer Jr., Stacy R. Welch, Wallach, Andrews, Florshiem & Stouffer, P.C., Fort Worth, for appellee.

Panel B: DAUPHINOT, GARDNER, and WALKER, JJ.

OPINION

ANNE GARDNER, Justice.

Appellant Peggy Lee Penley, a former member of CrossLand Community Bible Church ("CCBC"), brought suit against CCBC, its pastor C.L. "Buddy" Westbrook, Jr., and three church elders after Westbrook published a letter to CCBC's congregation urging the church members to "break fellowship" with Penley because she was seeking a divorce without a "biblical basis" and had "engage[d] in a biblically inappropriate relationship with another man."

In her pleadings, Penley alleged five causes of action: defamation, breach of fiduciary duty, intentional infliction of emotional distress, invasion of privacy, and negligence. On CCBC's and the four individual Defendants' pleas to the jurisdiction and motions to dismiss, the trial court dismissed all of Penley's claims for lack of subject matter jurisdiction on the basis that the First and Fourteenth Amendments to the United States Constitution shielded them from Penley's suit. In three issues, Penley complains that (1) the trial court erred in dismissing her professional negligence claim against Westbrook because her pleadings showed that the trial court had subject matter jurisdiction over that claim; (2) if her pleadings did not set forth sufficient jurisdictional allegations, the trial court erred in dismissing her claim without allowing her an opportunity to amend her pleadings; and (3) the trial court abused its discretion by excluding Westbrook's and Penley's testimony at the hearing on the Defendants' plea to the jurisdiction. We will affirm in part and reverse and remand in part.

I. FACTUAL BACKGROUND

A. Formation of CCBC & Penley's Membership

CCBC is an unincorporated nonprofit association founded and organized in October 1999 to exist and function as a "Christ-centered church" according to biblical principles and practices as described in CCBC's statement of faith and constitution. CCBC's leadership is comprised of "elders, deacons, pastors, ministers, and a treasurer." When CCBC was formed in October 1999, Westbrook was selected to serve as the pastor of CCBC. Westbrook, Dr. John Young, Mike Thatcher, and Aaron Johnson serve as elders at CCBC. In addition to being CCBC's pastor, Westbrook also holds himself out and works as a licensed professional counselor. Thus, over the same period Westbrook served as the pastor of CCBC, he also engaged in the practice of providing secular professional marriage and family counseling services to individuals facing marital difficulties.

CCBC's constitution, among other things, sets forth the church's membership and disciplinary policies. According to CCBC's constitution, an applicant for church membership must share his or her "willingness to abide by the constitution of the church" with the pastor, minister, or elder who interviews the applicant. Thus, CCBC's constitution required applicants to abide by the following disciplinary policy:

We believe that one of the primary responsibilities of the church is to maintain the purity of the Body. We are directed by God to be holy. In recognition of this obligation, the elders will biblically and lovingly utilize every appropriate means to restore members who find themselves in patterns of serious misconduct. When efforts at restoration fail, the elders will apply the Biblical teaching on church discipline, which could include revocation of membership, along with an appropriate announcement made to the membership (Matt 18:15-17; I Cor 5:1-5; Gal 6:1, 2; 2 Thes 3:6). No accusation shall be brought against any member except upon the testimony of two or three witnesses.

The constitution also provided that

[m]embership in this church will be terminated:

• Upon the request of a member who wishes to terminate his or her membership.

. . . .

• Upon the unanimous vote of the elders, relating to issues of a disciplinary procedure. When a member engages in a pattern of conduct which visibly violates Biblical standards, or which is detrimental to the ministry, unity, peace, or purity of the church, and such member remains unrepentant, the elders will follow our Lord's instructions from Matthew 18:15-20. If the member remains unrepentant and chooses not to resign, such member will be removed from membership. This action will be announced to the congregation in a tenderhearted, discreet manner, followed by prayer, at the first appropriate Sunday service thereafter. The goal of such discipline will be to encourage repentance and restoration of fellowship with the Lord and His people.

In October 1999, Penley became a member of CCBC. In a document titled "Cross-Land Community Bible Church Questions for Membership," Penley was asked to "[a]ffirm [her] willingness to abide by the constitution of this church (for example, with a `Yes, I willingly . . .' statement)." On June 6, 2000, Penley wrote, "Sure, I can abide by the church constitution . . . willingly."

B. Marital Counseling, Penley's Resignation, and Church Discipline

In July 2000, Penley physically separated from her husband, Ben Stone, due to marital difficulties and discord. Penley alleged that, at various relevant times, Westbrook provided secular professional counseling services to her and to Stone because of their need for marital and family counseling. In her petition, Penley alleged that Westbrook "held himself out and represented that he was qualified by education, training, and experience to provide professional marriage and family counseling, as a professional marriage and family counselor." Penley alleged that during various sessions with Westbrook, he "gained [her] trust and confidence" and "engaged in secular professional marriage and family counseling" services.

The counseling services and efforts were unsuccessful, and Penley decided to seek a divorce from Stone. Around October 22, 2000, Penley told Westbrook of her decision concerning her marriage, and Westbrook counseled her and recommended a family law attorney with whom Penley could consult. According to Penley, "Westbrook [also] made other statements and representations to her." Penley asserts that she responded by "positively and affirmatively terminat[ing] her membership in ... CCBC by informing [Westbrook] of her resignation from the membership of CCBC."

Penley alleges that, despite her resignation from CCBC, Westbrook met with church elders Young, Thatcher, and Johnson to write a letter concerning her actions and responsive church discipline to be published to CCBC's congregation. Westbrook and the elders later published a letter, dated November 7, 2000, to the members of CCBC. In the letter, Westbrook and the elders informed the congregation that Penley intended to divorce her husband, that there was no biblical basis for the divorce, and that she had engaged in a "biblically inappropriate" relationship with another man.

The letter described Penley's disciplinary process as one of "tough-love" and a "painful consequence that our Lord commands to `win' [her], to bring [her] back to the Lord in a full sense and back to [her] family who deeply love[s][her]." The letter also referenced the church disciplinary process by which all members are bound, discussed the church's biblical basis for disciplining a wayward church member like Penley, and encouraged the church body "to shun" Penley for the purpose of obtaining her repentance and restoration to the church. The letter specifically admonished the membership to treat the matter as a "members-only issue, not to be shared with those outside our family" and "to not gossip or judge." Penley and Stone eventually divorced on March 28, 2001.

II. PROCEDURAL HISTORY

On November 6, 2001, Penley sued CCBC, Westbrook, Young, Thatcher, and Johnson, alleging causes of action for defamation, breach of fiduciary duty, and intentional infliction of emotional distress. Penley sought actual and exemplary damages for injuries she allegedly sustained as a result of the Defendants' actions. Westbrook, the three elders, and CCBC filed general denials, special exceptions, pleas to the trial court's jurisdiction, and motions to dismiss for lack of subject matter jurisdiction, asserting that the First Amendment as incorporated through the Fourteenth Amendment deprived the trial court of any jurisdiction to adjudicate what they characterized as an "ecclesiastical dispute concerning an intra-church disciplinary matter." See U.S. CONST. amends I, XIV.

Penley attempted to conduct discovery on her claims by moving for discovery under a Level 3 discovery control plan and a scheduling order under rules 166 and 190.4 of the Texas Rules of Civil Procedure. See TEX.R. CIV. P. 166, 190.4. On February 25, Penley filed notices of her intention to take the depositions of Westbrook, Young, Thatcher, and Johnson, individually and as representatives of CCBC. Penley also served subpoenas on the Defendants to testify at the hearing on the Defendants' motions to dismiss for lack of subject matter jurisdiction. All of the Defendants filed motions to quash Penley's subpoenas, to quash Penley's deposition notices, and for protective orders pending a hearing on the trial court's jurisdiction. Penley responded and filed a motion to compel the oral depositions of the Defendants.

Thereafter, Penley amended her petition twice and added two more causes of action: invasion of privacy and negligence. In response, the Defendants filed several defensive pleadings, arguing, in...