Carrollton Presbyterian Church VS The Presbytery of South Louisiana of the Presbyterian Church (USA)

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STATE OF LOUISIANA COURT OF APPEAL FIRST CIRCU T N 2011 CA 4205 N CARROLLT PRESBYTERIAN CHURCH VERSUS THE PRESBYTERY OF SOUTH LOUISIANA OF THE PRESBYTERIAN CHURCH USA Judgment Rendered Se tember 14 20 1 On Appeal from the 19th Judicial District Court In and for the Parish of East Baton Rouge State of Louisiana Trial Court No CS65482 The Honorable Kay Bates Judge Presiding John Anthony Dunlap Russell L Foster Harry M Barton Attorneys or Defendant Appellant The Presbyt South Louisiana ryof ofthe Presbyterian Church USA New rleans LA and E Wade Shows Baton Rouge LA Eugene R Groves Lloyd J Lunceford Attorneys for Plaintiff Appellee Carrollton Presbyterian Church Baton Roug LA BEFORE CARTER C PARRO AND HIGGINBOTHAM JJ J J fl L t 1 t 4 r Ce CARTER C J This matter is before this court on appeal by the defendant the Presbytery of South Louisiana hereinafter ref to as the Presbytery from a judgment in a rred suit for declaratory judgment and permanent injunction rendered in favor of plaintiff Carrollton Presbyterian Church hereinafter referred to as Carrollton and from an order of contempt FACTS AND PROCEDURAL HISTORY Carrollton and the Presbytery are constituent members of the Presbyterian Church U hereinafter PCUSA The PCUSA governing document is its A S s constitution comprised of two books of which is the Book of Order one The Book of Order outlines the PCUSA organizational structure pursuant to which s the Presbytery one of the s PCUSA governing bodies exercises certain supervisory powers and authority over Carrollton a local church subj to ct review by the next higher governing body Carrollton was organized in 1855 and incorporated as a Louisiana corporation in 1 Over the cou of years Carrollton acquired property in its 94 rse name including the immovable property in New Orleans that is the site of s Carrollton sanctuary Carrollton also sold property it held in its name In recent years Carrollton membership had declined and there was some talk of Carrollton s dissolving although Carrollton did not formally petition to do so Carrollton also began investigating a potential sale of its sanctuary property The declaratory judgment portion of this dispute raises the issue of whether Carrollton holds in full and exclusive ownership property held in its name and therefore may sell its property as it desires Th Presbytery maintains that Carrollton is subject to the Book of Order express trust provision which creates s an express trust in church property in favor of the PCUSA Carrollton argues that the trust provision of the Book of Order does not comply with Louisiana trust law 2 and further contends that the provision is inapplicable here as Carrollton timely exercised its option to exempt itself from the trust provision After Carrollton amended its petition the district court granted a temporary the restraining order TRO prohibiting administrative commission to take jurisdiction Presbytery over from s Carrollton establishing session an After finding that Carrollton set forth a prima facie showing that it would prevail on the merits of the suit the district court issued a preliminary injunction effective against the Presbytery and pertaining to all property held by oz for Carrollton enjoining the Presbytery From filing documents in the mortgage and conveyance records of Orleans Parish that would create a cloud on Carrollton title to its property or s interfering with s Carrollton disposition of its property ry Presbyt from right to determine ership owr use control or The preliminary injunction further enjoined the changing the church locks initiating disciplinary action against sministers or members in relation to the subject matter of this litigation Carrollton dissolving Carrolltor or appointing or initiating processes leading to appointment of an administrative commission to assert jurisdiction over Carrollton to assume control over its governance of or control of the subject prop or interfering with rty Carrollton in any way pertainin to ownership control use or disposition of church property The district court then granted Carrollton smotion for summary judgment declaring that all property held by fox or in Carrollton name is held and owned s by Carrollton which holds and owns all property in its rtame in full complete and unfettered ownership in accordance with Louisiana law and further that the express tarust provisions relied on by the Presbytery are unenforceable and without legal effect as to the subject property Additionally the distxict court issued a permanent injunction enjoining the Presbytery from asserting ownership use The session is the governing body of the local church 3 control or a trust over any property titled in Carrollton name and also from s taking any action that could affect Canrollton sproperty rights which specifically included but was not limited to the actions enumerated in the preliminary injunction The Presbytery now appeals JURiSDICTION After lodging of the appellate record this court ex proprio motu issued a rule to show cause why this appeal should not be dismissed as it appeared that the motion for appeal was untimely filed The matter was briefed and the record d rect coz in part by the district court Having examined the record herein we are satisfied that a motion and order for appeal were timely filed with the district court Although the order of appeal was not signed within the delays for perfecting a suspensive appeal it is apparent that this was du to ongoing litigation regarding the amount of the suspensive appeal bond Thus the fault for th order not being timely signed is not clearly imputable to the appellant Since the motion and order were timely filed the appeal will not be dismissed because the order was not 3 timely signed See Trazgle v Gulf Coast Aluminum Corp 399 So 2d 1 186 La 1981 Hill v Hill 412 So 2d 11 S6 11 S7 La App 1 Cir 1982 Accordingly the rule to show cause is hereby recalled and the appeal maintained as qualified herein Unrelated to the rule to show cause Carrollton filed a motion to partially dismiss this appeal Whi1e these matters were proceeding below the parties were engaged in numerous discovery disputes that prompted court production of ordered After this caurt issued the rule ta show cause Carrollton advanced the argument that the timely filed order of appeal could not be considered because it was led into the recard by Carrolltan artd not by the Presbytery Additionally Carrolltan pointed out that the suspensive appeal band was not filed within the delay provided by La Code Civ Prac Ann art 2123 ver How Carrollton did not file a motion to dismiss the suspet appeal within thre days of save the return date or lodging as required by La Code Civ Proc Ann art 2161 Accordingly the suspensive appeal is not invalid for these reasons See Wright v Jefferson Roa Inc 93 ng 1217 La 1 630 So 2d 773 776 94 14 4 docuinents and motions for contempt and sanctions On the same date that the district court rendered the summary judgment at issue in this appeal it signed an order the order granting a motion for contempt filed by Carrollton and ordering the Presbytery to pay all costs fees and expenses reasonably incurred with the motion for contempt and making other rulings pertaining to the production of certain documents suspensive appeal The order of appeal purports to grant the Presbytery a of both the summary judgment and the order Carrollton contends that this court lacks appellate jurisdiction to consider the order at this time as it is interlocutory and unrelated to the merits of the final judgment appealed The Presbytery argues that the order constitutes a final judgment under La Code Civ Proc Ann art 6 1915A which provides for the finality of judgments imposing sanctions or disciplinary action pursuant to La Code Civ Proc Ann arts 191 863 or 64 and I Code Evid Ann art 510G a The order does not purport to be a judgment imposing sanctions or disciplinary action pursuant to La Code Civ Proc Ann arts 191 863 or 8b4 or La Code Evid Ann art S 10G Rather the order holds a party in contempt and orders that party to pay an unspecified amount We do not find that this falls under the rubric of La Code Civ Proc Ann art 1915A See Succession ofBell 06 6 1710 La App 1 Cir 6 964 So 2d 1067 1072 07 8 Th order is interlocutory since it does not determine the substantive merits o the 1072 case and is not separately appealabl Succession of Bell 964 So 2d at In general when an unrestricted appeal is taken from a final judgment determinative of the merits the appellant is entitled to seek review of all adverse and prejudicial interlocutary judgments in addition to the review of the final judgment State ex rel Div ofAdmin Office ofRisk Mgt v National Union Fire Ins Co of Louzszana 10 La App 1 Cir 2 S6 So 3d 1236 1242 0689 11 11 writ 0849 denied 11 La 6 63 So 3d 1023 11 3 5 In the case of a restricted appeal an appellant may also appeal an interlocutory judgm involving the same nt or related issues Id The appeal herein is restricted to the merits of the declaaratory judgment and preliminary injunction At the time this appeal was taken Carrollton smotion for sanctions remained outstanding Our review of the record convinces us that the order relates to the motion for sanctions rather than to the merits of the declaratory judgment or permanent injunction The documents at issue in the order were ordered to be produced after the merits of the declaratory judgment or permanent injunction were decided Thus we find that this interlocutory ruling is not subject to review on appeal of the unrelated judgment on the declaratory judgment and permanent injunction Accordingly the motion for partial dismissal is granted and appeal of the order is dismissed MOT10N FUR SUMMARY JUDGMENT The character of the underlying action herein is one for declaratory judgment and permanent injunction however the judgment before the cou on appeal was t rendered pursuant pursuant to to a motion for summary the summary judgment standard judgment Thus our review is See La Cod Civ Proc Ann art 1877 Bonvillian v State ex rel Department oflnsurance 0 La App 1 Cir OS91 08 23 12 5 So 3d 233 I 235 Appellate courts review summary judgments de novo using the same criteria that govern the trial s court consideration of wheth rsummary judgment is appropriate Bozarth v State LSU Medical Center Medzcal Center 09 Chabert 1393 La App 1 Cir 2 35 So 3d 316 323 The motion should be granted 10 12 only if the pleadings d answears to interrogatories and admissions on positions f le together with the affidavits if any show that there is no genuine issue as to 3 Carrollton represented in brief and again at oral argument that the matter is currently under advisement by the district court 6 material fact and that th mover is entitled to judgment as a matter of law La Code Civ Proc Ann art 966B Bozarth 35 So 3d at 323 Th burden of proof on a motion for summary judgment is on the moving party If the moving party will not bear the burden of proof at trial on the matter that is before the court the moving party burden is to point out to the court that s there is an absence o factual support for one or more elements essential to the adverse s party claim action or defense Thereafter the burden shifts to the adverse party to prove that there ar genuine issues of material fact by providing factual evidence sufficient to establish the ability to satisfy the evid burden ntiary ofproof at trial La Code Civ Proc Ann art 966C 2 A fact is material when its existence or nonexistence may be essential to the plaintiff s cause of action under the applicable theory of recovery Facts are material if they potentially insure or preclude recovery affect a litigant ultimate s success or determine the outcome of the legal dispute Bozarth 35 So 3d at 324 Because it is the applicable substantive law that determines materiality whether a particular fact in dispute is material can be seen only in light of the substantive law applicable to the case Bozarth 3S So at 324 Saizan v Pointe Coupee Parish 3d School 0757 Bd 10 La App 1 Cir 10 29 14 49 So 3d 559 563 writ denzed 10 La 1 52 So 3d 905 2599 11 14 The instant matter is a church property dispute The First Amendment to the United Stat Constitutior prohibits courts from resolving such disputes on the s basis of religious doctrine and practice Iones v Wolf 443 U 595 602 1979 S Rather we must employ neutral principles of law examining certain religious documents such as a church constitution with an attitude of neutrality and non entanglement Fluker Community Church v Hitchens 419 So 2d 445 447 La 1982 7 The Book of Order xpress trust provision which the Presbytery cont s nds applies to the subject property is set forth in G as follows 0201 8 All property held by title is in or for a particular church whether legal trustees or an lodged corporation unincorporated association and whether the property is used in programs of a particular church or of a more inclusive governing body or retained for the production of income is held in trust nevertheless for the use and benefit of the PCUSA a a trustee or Further th Book of Order G provides OS01 8 A particular church shall not sell mortgage or otherwise encumber any of its real property and it shall not acquire real property subject to an encumbrance or condition without the written p rmission of the presbytery transmitted through the session of the particular church The same chapter ofthe Book of Order also contains an exception provision in G 0701 The provisions of this chapter shall apply to all particular churches of the PCUSA except that any chuxch which was not subject to a similar provision of the Constitution of the church of which it was a part prior to the reunion of th Presbyterian Church in the United States and The United Presbyterian Church in the United States of America to form the PCUSA shall be excused from that provision of this chapter if the congregation shall within a period of eight years following the establishment of the PCUSA vote to be exempt from such provision in a regularly called meeting and shall thereafter notify the presbytery of which it is a constituent church of such vote The particular church voting to be so exempt shall hold title to its property and exercise its privileges of incorporation and property ownership under the provisions of the Constitution to which it was subject immediately prior to the establishment of the PCUSA This paragraph may not be amended There is no dispute that Carrollton timely exercised its right to except as provided in G 0701 8 Prior to the reunion ref to in G Carrollton was subject to The rred 1 07 8 Book of Church Order of the Presbyterian Church in the United States PCUS which in 8 6 pertinently provided Nothing in this chapter shall be construed to requir a particular church to seek or obtain the consent or approval of any church court above the level of the particular church in order to buy sell or 8 I mortgage the property of that particular church in the conduct of its affairs as a church of the PCUS Apparently inconsistent was 3 6 which purported to create a trust ov church r property stating All property held by or for a particular church whether legal title is lodged in a corporation a trustee or trustees or an unincorporated association and whether the property is used in programs of the particular church or retained for the production of income is held in trust nevertheless for the use and benefit ofthe Presbyterian Church in the United States The Presbytery has advanced the argument that even if Carrollton is not subject to the express trust provision of the Book of Order it would still be subject to the express trust provision of the Book of Church Order However G 0701 8 allows a church to be excused from a provision in that chapter of the Book of Order that is not substantially similar to a provision of its prior governing constitution As the two purported express trust provisions in the Book of Qrder and Carrollton prior governing constitution The Book of Church Order are s substantially similar this could only mean that G provided Carrollton a 0701 8 means of opting out of G which requir the presbytery OS01 8 s sauthorization to sell mortgage or encumber property since that provision is in sharp contrast to 8 6 of The Book of Church Order which allowed a church to buy sell or mortgag property of that particular church As the district court arecognized in written reasons or issuance of a preliminary injunction th unfetter right to d dispose of all of one property is mutually exclusive of any right by a third party s to dictate the disposition of that Carrollton to fall back on same property In other words in allowing b G negated any express trust as provided by 0701 8 o2o s G Moreover we agree with both Carrollton and the district court that ev if n we were not persuaded that Carrollton is exempt from the Book of rder express s trust provision Louisiana trust law would apply to this dispute over Louisiana 9 In Jones v Wvlf 443 U at 602 the United States Supreme Court S property recognized a state obvious and legitimate interest in the p resolution of s aceful property disputes and in providing a civil forum where the ownership of church property can be determin conclusively d The Court went on to note that application of the neutral approach relies exclusively on objective principles established we11 concepts of trust and property 1aw familiar to lawyers and judges Jones 443 U at b03 Although the Court opined that a trust in favor of S a general church could be created by the constitution of the general church being made to recite an express trust provision in favor of the denominational church the Court noted the civil courts will be bound to give effect to the result indicated by the parties prnvfded it is embodied in some legally cognizable fo Iones 443 m S U at 60b emphasis added We are not persuaded by the Presbytery s contention that the requirement of acognizable fortn was met simply by legally the PCUSA amending its constitution s The subject property is situated in Louisiana and applying neutral principles of law we find that any purported trust would be subject to the form requirements set forth in Louisiana Trust Code It is undisputed that those form s requirements have not been met The public records relating to the subject property reflect that the property is owned by Carrollton There is no mention of the property being held in trust in the deeds themselves and it is not disputed that no tarust instrument relating to the property has be filed of record in Orleans n Parish See La Rev Stat Ann 2092 9 The Pr has also advanced the argument that Carrollton was actually sbytery in the process of dissolving thereby invoking the Book of Order G which 0301 8 provides 4 Further we note that in Ione 443 U at 509 the Supreme Court concluded that it was r S not declaring what the law of Georgia was 10 ver When paroperty of or held for a particular church of the PCUSA ceases to be used by that church as a particular church of the PCUSA in accordance with this Constitution such property shall be held used applied transferred or sold as provided by the presbytery Th record is cl that Carrollton church population had declin and ar s d Carrollton was seeking to sell the property it held However the record evidence does not create a genuine issue of material fact as to whether Carrollton was in the process ot dissolving The deposition testimony of Reverend Cutter who was at the time of his deposition the General Presbyter of the Presbytery explained that dissolution is a long drawn process and that there was no ormal reyuest from out Carrollton that it be dissolved Reverend Roeling treasurer of the Presbytery also attested to there being no petition for dissolution by Carrollton and that Carrollton part of the PCUSA was a Although the record contains references to talk of dissolution we are not persuaded that there is a genuine issue of material fact as to Carrollton being in the process of dissolving so as to invoke G and grant 0301 8 the Presbytery control over any sale afthe property After xamining th governing religious documents with an attitude of neutrality as we are mandated we find that summary judgment was appropriately granted as to the declaratory judgment W turn now to the Presbytery assertion that the permanent injunction s issued by the district court unconstitutionally inhibits the free exercise of religion by the Presbytery The Presbytery complaint is limited to its position that the s grant of injunctive relief unconstitutionally entangled the court in matters of church overnance The Presbytery does not contend that the injunctiv relief was otherwise improperly granted The Presbytery specifically complains about language contained in the February 13 2009 TRO issued by the district court However the TRO has since expired See La Code Civ Proc Ann art ll 3604 Although noting that both the preliminary and permanent injunctions include lartguage restricting the stated prohibitions to the property and subject matter of this lawsuit the Presbytery contends the injunc are merely superficial alterations of the TRO such that ions they continue to exceed the jurisdiction of the district court Preliminary injunctions merge into and are superseded by permanent injunctions Mount Gideon Baptist Church Inc v Robznson O1 La App 1 0749 Cir 2 812 So 2d 758 762 writ denied 02 La 6819 So 2d 02 15 1229 02 21 1024 Green v Champion Ins Co S77 So 2d 249 260 La App 1 Cir writ denied 580 So 2d 668 La 1991 Thus the parties are now controlled by the permanent injunction set forth in the judgment on appeal as follows IT S FURTHER ORDERED that a Permaner njunction be t and it is hereby issued against the Presbyteary of South Louisiana of the Presbyterian Church USA its officers agents employees and counsel and any persons or entities in active concert oz participation with the Presbytery or acting by or through the Presbytery or on its behalf in its stead This Permanent Injunction pertains to all Carrollton Presbyterian Church both Property by immovable real together with all buildings and improvements or held or for thereon and movable p whether corporeal or incorporeal rsonal wherever located whether held by for or in the name of Carrollton sbyterian Pr Church of New rleans or its successor corporation Carrollton Presbyterian Church collectively Personal and Real Property which immovable Property is more particularly described in Attachment A hereto The Presbytery is enjoined from filing any documents in the mortgage and conveyance records of Orleans Parish to assert ownership use or control or rights to determine ownership use or control to any immovable Property titled in the name of the Carrollton Presbyterian Church or to assert a trust on behal of the Presbytery or other affiliated third party over immovable Property titled in the name of Carrollton Presbyterian Church or otherwise held by or for Carrollton Presbyt Church the effect of which rian would be to place a cloud on the title of said immovable Property or otherwise interf with or disturb Plaintiff ownership use control re s or disposition of Plaintiffs Personal or Real Propex or int ty rfere with Plaintiff right to determine the ownexship use control or disposition of Personal or Real Property held by or for Carrollton Presbyterian Church or held in the possession of control of or owned by or titled in the name of Carrollton Presbyterian Church IT IS FURTHER ORDERED that the Presbytery of South Louisiana of the Presbyterian Church USA and any persons or ntities in active concert or participation with it on its behalf or in its stead whether acting directly or indirectly are permanently enjoined 12 from taking any action that could affect the property rights of Carrollton rian Presbyt Church including but not limited to l seeking to change the locks of Carrollton Presbyt Church 2 rian initiating any disciplinary or other retaliatory action against the employees officers ministers or members of Carrollton Presbyterian Church which directly or indirectly arises from or is connected to any property issue raised in prompted by or relat the subject matter dto of this litigation 3 dissolving Carrollton Presbyterian Church or nting appo or initiating processes leading to the appointment of an administrative commission to assert original jurisdiction directly or indirectly over Carrollton Presbyterian Church in order to assume or effect control over the ownership use or disposition of the Personal or Real Property or 4 otherwise interfering with the normal duties and responsibilities of the officers ministers and employees of Carrollton Presbyterian Church the governing body of Piainti the f session or the board of trustees the gaverning body of Plaintif or any designees thereof in any way that pertains to the ownership control use or disposition of the Personal or Real Property held by for or in the name of Carrollton Presbyterian Church which claims to s Plaintiff Personal and Real Property are fully adjudicated herein as reflected by this Final Declaratory Judgment Nothing in this Permanent Injunction shall preclude the Presbytery from taking ecclesiastical action for non xtual pret ecclesiastical cause that is unrelated to this litigation or any property issue raised in prompted by related to or affecting the ownership control use or disposition of the Personal or Real Property held by for or in the name of Carrollton Presbyterian Church The Presbytery contends that the prohibitions against disciplinary actions and dissolution or appointment of an administrative commission strike at the very heart of the internal governance of the PCUSA and specifically the powers granted to th Presbytery by the Book of Order We reiterate that the courts of this state have jurisdiction to adjudicate church property disputes See F Community Church 419 So 2d at 447 luker However courts must be mindful not to overreach their jurisdiction and become entangled in questions of church doctrine Washington v Iames 42 La App 345 2 Cir 1 S 962 So 2d 1154 11 S9 07 In written reasons for issuing the preliminary injunetion the district court stated Even assuming that Carrollton could not show a deprivation of a constitutional right there is also evidence that the congregation s missions and ministries would be irreparably harmed without the 13 issuance of the injunction Perhaps the best evidence of this looming s commission unilateral decision to dissolve Caz in an effort to terminate its existence is hardship the s synod administrative I have concluded that the balance of hardships tilts in favor of the congregation Without the injunction Carrollton may very well cease to exist This is not the simply case for the Presbytery The s Presbytery argument that the congregation will be able to appeal any decision of the synod also rings hollow It was the synod after all that acted to dissolve Garrolton in the first place The Presbytery argument that a civil court has no business s resolving the present dispute echoes its position that this court lacks subject matter jurisdiction I have already rejected this argument The Presbytery has consist attempted to reframe this entire case ntly as a fight over ecclesiastical principles and hierarchical discipline These issues are p however and do not preclude the ripheral availability of relief from this court Far from disserving the public interest and entangling the court in religious matters the issuance of the injunction will ensure that litigants on both sides of this issue are able to resolve compl xproperty disputes before a neutral body just as the Fluker court required Having carefully considered this matter we find no unconstitutional breach by the district actions The injunctive relief is narrowly focused and restricted to court affecting the property that is the subject matter of this litigation Contrast Thompson v Bank 4ne ofLouisiana OS La App 4 Cir 1 11 06 925 So 1101 2d SSS writ denied 06 La 4 927 So 2d 288 holding that a court 0321 46 28 ordered permanent reinstatement of a particular pastor of a church would under the circumstances presented violate the Constitutional principle of separation of church and state found in the First Amendment to the United States Constitution which has been interpreted to forbid courts f interfering with ecclesiastical rom matters of religious groups The prohibited actions enumearated in th injunction are specifically limit to instances affecting the instant church property dispute d Thus we find no error CONCLUSION For the foregoing reasons the rule to show cause issued by this court on February 17 2011 is recalled The motion for partial dismassal filed by Carrollton 14 is granted The appeal of the judgment of December 4 2009 is maintained and the appeal of the order of December 4 2009 is dismissed The judgment of mber Dec 4 2009 is affirmed Costs of this appeal are assessed to the Presbytery of South Louisiana of the Presbyterian Church USA RULE TO SHOW CAUSE RECALLED MOTION FOR PARTIAL DISMISSAL GRANTED APPEAL MAINTAINED AS TQ JUDGMENT OF DECEMBER 4 20 APPEAL DISMISSED AS TQ ORDER F 9 DECEMBER 4 2009 JUDGMENT OF DECEMBER 4 20 AFFIRMED 9 I 15

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