After 18 months of unnecessary legal action taken by CCGLA, the motion for a new trial that was granted in February 2007 expired without any further action by CCGLA. This means the lawsuit has died. While the initial judgment made in favor of the Collin Equality Foundation would have extremely beneficial to our community, it was very pleasant to see that it had died the natural (legal) death in February 2008.
Having now had some time to sit back and catch up on things, I decided to post a response to the Motion for Non-Suit filed by Jay English, CCGLA’s Attorney. The CEF is not planning on opposing the motion, however it contained a number of statements or claims that continued to misrepresent the facts.
The “claims” (or statements) are italicized with my comments beneath each one.
CCGLA’S MOTION FOR NON-SUIT
Filed by Jay English, CCGLA’s Attorney
WHEREAS the Plaintiff Collin County Gay Lesbian Alliance (“CCGLA”) and its board of directors founded the Collin Equality Foundation (“CEF”) to carry out the charitable work of the CCGLA and serve as a tax-exempt repository of contributions to further the cause of the Gay, Lesbian, Bisexual and Transgender persons in Collin County, Texas; and,
This is probably the only accurate statement in this the entire document. Unlike Mr. English’s claim in front of the Court on April 2, the CCGLA board did establish the Collin Equality Foundation on October 25, 2003. Like I had done with the original articles and bylaws of CCGLA, I was also the author of the articles of incorporation and the bylaws for the CEF.
WHEREAS CEFs current board of directors illegally and inappropriately seized control of the CEF in violation of the Bylaws of CEF and in derogation of the rights of the CCGLA to at all times maintain control of the CEF, and the CEF thereafter brought suit against the CCGLA in justice court; and
At the time the bylaws were amended to remove reference to CCGLA, the following people were members of the board of trustees: James Nunn, Chris Moss, Brian Marshall, Sean O’Connor, Morris Garcia and Dawnetta Miller. The notice of meeting was provided as is required by the bylaws and Texas law, no director (trustee) objected to the meeting being called inappropriately (as is provided in the CEF bylaws), and when the vote was taken to modify the bylaws, the motions were carried with a 4-2 majority. (See CEF minutes for November 16, 2005.)
As has been stated in our filings with the court, nothing illegal was ever undertaken by the CEF Board. Some people got their feelings hurt, but that is the extent of what happened.
The reference to the justice court suit was in connection to the actions taken by the majority of the CCGLA board in retaliation against myself. The justice court suit was an action I took, not the Foundation. Details of the suit can be seen here.
WHEREAS CCGLA brought the instant suit to carry out the CCGLA’s mission to operate the CEF, and sought to restore control of the ownership of the funds and the considerable good will the CEF enjoyed as part of the CCGLA; but
CCGLA waited six months to file the law suit. During the time the decision was made by the CEF Board and the filing of the lawsuit, both Dawnetta Miller and Morris Garcia resigned.
WHEREAS since the time the law suit was initiated, the CEF has ameliorated the funds and destroyed the good will of the CEF, making it for all purposes worthless, and continued prosecution of this law suit a waste of time and energy of the CCGLA, which intends to carry on the just and appropriate business of the CCGLA through the establishment of a new charitable foundation to be endowed with the considerable good will of the CCGLA; and
ameliorate: To make or become better; improve.
It’s nice that CCGLA acknowledged that since lawsuit was initiated the board actually improved the funds of the Foundation, and good-will has remained intact. Since the lawsuit was filed by CCGLA, a great deal of good-will that was once enjoyed by CCGLA has dissipated. Much of this has been caused by the leadership of the CCGLA board, and the lack of focus on the actual mission of CCGLA.
As I have said on many occasions, and as we have stated in our court filings, this lawsuit has always been a waste of time, and energy. CCGLA made no effort to resolve this matter prior to the court hearing on January 12, even though one of the resolutions – agreed to by the CEF Board – was the very action they state they are taking (i.e. creation of new charitable organization).
WHEREAS there are no pending counter-claims or affirmative claims for relief other than those presented by the Plaintiff; and
Okay, there were two accurate statements made.
WHEREAS it is the desire of the CCGLA to distance itself from the CEF and its current board of directors and the “ill will” that they have represented in the community;
As mentioned earlier, the only amount of ill-will that has been generated has been by existing board members of CCGLA. One excellent example took place at the March Gay Bingo, where two of the CCGLA board members taunted our group during the evening. It caused a general discussion amongst our group of 12-14 and generated a great deal of ‘ill-will’ towards CCGLA based on CCGLA board member actions.
After we thought the matter between CCGLA and CEF had been resolved, the judge granted a motion for a new hearing on April 16, 2007.
CCGLA’s attorney made some startling new claims during the hearing, especially the “fact” that CCGLA paid an attorney to draft the CEF’s documents, so they had a vested interest in the creation of the foundation. (Side note: As the author of the CEF’s Articles and Bylaws, I am not an attorney, AND I was never paid!)
CCGLA’s attorney made the claim that they needed to depose one member of the foundation’s board (I assume this would be me) so they could make their case to the Court. Based on this, the judge granted the motion.
During the hearing, the judge made the comment that he thought that one of the attorney’s was lying, and that he had never known our attorney to lie (having been in front of this particular judge a number of times). The judge warned that when he found out who was lying, that he would take action against that attorney. Talk about an uncomfortable moment for one particular attorney.
Shortly after this hearing, CCGLA filed a motion of non-suit with the court (May 4, 2007). Effectively, they are now backing out of the case. (See Motion for Non Suit from Jay English)
On March 31, 2006, Collin County Gay and Lesbian Alliance filed suit against Collin Equality Foundation for Declaratory Judgment and Application for Temporary Restraining Order and Injuctive Relief (Court Reference: 401-00994-06).
The Plaintiffs are Collin County Gay & Lesbian Alliance, Michael Agan (Mike Agan), Lorie Burch, John Clements, Morris Garcia, Rosalinda Martinez (Blue Martinez), Dawnetta Miller, Wendell Mott (Dell Mott), and Kenneth Stowe.
The Defendants are Collin Equality Foundation, James Nunn, Chris Moss, Brian Marshall, and Sean O’Connor.
The case was dismissed with prejudice on January 12, 2007 and CCGLA was ordered to pay $8,750 in fees/costs to Collin Equality Foundation.
A summary of activities can be found by clicking this link.
On January 12, 2007 the 401st District Court considered our motion for Summary Judgment.
Even after the judge convened his Court an hour late (due to a medical issue), and notice had been provided to CCGLA (Plaintiff) through their attorney about the hearing, CCGLA’s attorney failed to appear or contact the Court.
The judge made a number of comments about this case, and reported that he had reviewed all two volumes the night before. Our attorney provided an update to the Court, and the Court found the following:
- The Court FINDS that Plaintiffs failed to respond to Defendants’ Motion to Abate and Special Exceptions.
- The Court FINDS that Plaintiffs failed to attach supplemental affidavit to their pleadings.
- The Court FINDS that Plaintiffs failed to amend their pleadings as requested.
- The Court FINDS that Plaintiffs failed to respond to Defendants’ Motion for Summary Judgment.
- The Court, sua sponte, FINDS that no evidence summary judgment should be granted.
The following orders were then made by the Court:
- Defendants’ Motion for Summary Judgment was GRANTED.
- Defendants’ Motion for Summary Judgment was GRANTED on the basis of no evidence.
- Plaintiffs claims of Suit for Declaratory Relief, Breach of Fiduciary Duty and Request for Temporary Restraining Order were DISMISSED WITH PREJUDICE.
- Plaintiffs ordered to pay $8,300 in fees and $450 in costs (totalling $8,750).
So finally, after ten months, the case was dismissed in the Foundation’s (and its Trustees) favor.
Court Reference: 401-00994-06
Collin County Gay & Lesbian Alliance, Michael Agan, Lorie Burch, John Clements, Morris Garcia, Rosalinda Martinez, Dawnetta Miller, Wendell Mott, Kenneth Stowe (Plaintiffs)
Collin Equality Foundation, James Nunn, Chris Moss, Brian Marshall, Sean O’Connor (Defendants)