REPLY BRIEF OF PRESBYTERY OF ST. ANDREW, PRESBYTERIAN CHURCH U.S.A., INC. APPELLANT

Transcription

1 E-Filed Document Aug :30: CA SCT Pages: 20 SUPREME COURT OF THE STATE OF MISSISSIPPI COURT OF APPEALS OF THE STATE OF MISSISSIPPI PRESBYTERY OF ST. ANDREW PRESBYTERIAN CHURCH U.S.A., INC. VS. APPELLANT CAUSE NO CA FIRST PRESBYTERIAN CHURCH PCUSA OF STARKVILLE, MISSISSIPPI APPELLEE APPEAL FROM THE CHANCERY COURT OF OKTIBBEHA COUNTY CAUSE NO. 53CH1:15-cv-0151-D REPLY BRIEF OF PRESBYTERY OF ST. ANDREW, PRESBYTERIAN CHURCH U.S.A., INC. APPELLANT ORAL ARGUMENT REQUESTED P. SCOTT PHILLIPS, MSB #4168 ANDREW F. TOMINELLO, MSB # CAMPBELL DELONG, LLP 923 Washington Avenue Greenville, MS (662) (662) COUNSEL FOR APPELLANT PRESBYTERY OF ST. ANDREW, PRESBYTERIAN CHURCH U.S.A., INC.

2 TABLE OF CONTENTS Table of Contents ii Table of Authorities iii Argument in Reply I. Introduction II. Argument in Response a. The hierarchical nature of the PC(USA) is relevant to a neutral principles of law analysis b. FPC Starkville s 1984 resolution created an express trust in favor of the PC(USA) c. FPC Starkville s misunderstandings regarding the PC(USA) property chapter and the effect of exemption do not invalidate the PC(USA) s trust interest in its property d. The PC(USA) can claim a trust interest in FPC Starkville s property under the PCUS Trust Clause e. The affidavit of the Presbyterian Church (U.S.A.), A Corporation is not an express disclaimer of any interest in the FPC Starkville s property f. The trial court s determination regarding the lack of a resulting and constructive trust in favor of the PC(USA) warrants reversal g. FPC Starkville has failed to demonstrate the Chancellor correctly applied the decisions in Shirley, Jones v. Wolf, and Timberridge h. Presbytery s First Amendment Rights are violated by the lower court s permanent injunction Conclusion Certificate of Service ii

3 TABLE OF AUTHORITIES CASES: Church of God Pentecostal, Inc. v. Freewill Pentecostal Church of God, Inc., 716 So. 2d 200, 205 (Miss. 1998) Hart v. First Nat l Bank of Jackson, 103 So. 2d 406, 409 (Miss. 1958) Jones v. Wolf, 443 U.S. 595 (1979) , 13, 14 In re Andrews, 560 B.R. 429, 445 (S.D. Miss. 2016) Linton v. Flowers, 94 So. 2d 615, (Miss. 1957) Malone v. Malone, 379 So. 2d 926, (Miss. 1980) Mt. Helm Baptist Church v. Jones, 30 So. 714, (Miss. 1901) Presbytery of Greater Atlanta, Inc. v. Timberridge Presbyterian Church, Inc., 290 Ga. 272 (Ga. 2011) , 14 Schmidt v. Catholic Diocese of Biloxi, 18 So. 3d 814 (Miss. 2009) Shirley, v. Christian Episcopal Methodist Church, 748 So. 2d 672 (Miss. 1999) , 2, 13, 14 RULES: MISS. CODE ANN (2016) MISS. CODE ANN (2016) , 12 MISS. CODE ANN (2016) , 12 MISS. CODE ANN (2016) Pa.C.S.A iii

4 ARGUMENT IN REPLY I. Introduction Presbytery hereby submits this reply in further support of its initial brief on appeal and to address the erroneous factual and legal contentions made by FPC Starkville in its response brief. II. Argument a. The hierarchical nature of the PC(USA) is relevant to a neutral principles of law analysis. In an attempt to avoid the trust imposed on its church property under the Book of Order and justify the lower court s grant of summary judgment in its favor, FPC Starkville claims the relationship between a congregation and its denomination is irrelevant in the neutral principles [of law] analysis. FPC Starkville s Brief at pp Further to that point, FPC Starkville contends that Mississippi courts will not defer to a decision by a denomination s tribunals when it concerns property, as any judicial determination must disregard the parties religious relationships. Id. Utilizing this framework, FPC Starkville downplays the importance of its relationship to the PC(USA), arguing that the courts in Church of God Pentecostal, Inc. v. Freewill Pentecostal Church of God, Inc. and Jones v. Wolf refused to uphold a denomination s claimed trust interest in church property based on a mere connectional relationship with the congregation. Starkly contrasting with its contention that the denomination-congregation relationship is irrelevant, FPC Starkville, in its discussion of Shirley v. Christian Methodist Episcopal Church, outright acknowledges that a congregation s relationship with a denomination is important. FPC Starkville s Brief at pp. 27. Seeking to distinguish Shirley from Church of God and Wolf, FPC Starkville cavils that the congregation s connection to the denomination in Shirley did not create the trust interest in the property, but, instead, demonstrated the congregation s intent to be bound by the denomination s 1

5 constitution and, hence, the trust clause contained therein. Id. Without question, this has been Presbytery s position since commencement of this matter 1. As argued by Presbytery in its initial brief, the nature and degree of a congregation s relationship with a denomination is most certainly a relevant inquiry under the neutral principles of law approach. Shirley v. Christian Methodist Episcopal Church, 748 So. 2d 672, 676 (Miss. 1999); See also Presbytery s Br. at pp Moreover, while a court is not required to defer to a decision of a denomination s tribunals with respect to property ownership, it must defer to religious concepts when incorporated into its governing documents and/or constitution. Schmidt v. Catholic Diocese of Biloxi, 18 So. 3d 814, 824 (Miss. 2009). FPC Starkville s connection to the PC(USA) is overwhelming and undeniable. See Presbytery s Br. at pp. 9-15; As throughly discussed in Presbytery s Appellate Brief, FPC Starkville was not merely connected to the PC(USA). See Id. Rather, FPC Starkville s actions, declarations, and subsequent affirmations over the years establish a substantial and well-documented connection between it and the PC(USA). Id. In fact, FPC Starkville actually identified itself as a member church in the PC(USA) in its very bylaws, wherein it expressly acceded to jurisdiction under the PC(USA) constitution, as well as in its name, incorporating as First Presbyterian Church 1 In its argument, FPC Starkville accuses Presbytery of misread[ing] Shirley to stand for the proposition that a mere connectional relationship between a congregation and denomination is sufficient to create a trust interest in church property under Mississippi law. However, FPC Starkville has actually misread Presbytery s argument, as Presbytery has always contended that FPC Starkville s relationship with it demonstrates its intent to be bound by the provisions of the Book of Order and, thus, subjects the church property to a trust in favor of the PC(USA). See Presbytery s Br. at p. 25 ( As the Shirley court found a connection between a congregation and denomination similar to that of Appellant and Appellee created a trust interest in the congregation s property in favor of the denomination under its constitution, the lower court committed a clear error of law )(emphasis added) and p. 31 ( Because of [FPC Starkville s] intent [to be a member church of the PC(USA)], the lower court should have found Appellee s property was subject to... a trust interest in favor of PC(USA) ). 2

6 PCUSA of Starkville, Mississippi. C.P. at 562, Most telling of all is its decision to remain a member congregation of the PC(USA) when it had the right to leave the denomination with its property within 8 years of reunion. See Presbytery s Br. at pp It is this connection to the PC(USA) that subjects FPC Starkville s property to the constitutional trust interest in favor of Presbytery, as FPC Starkville unquestionably bound itself to governance under the Book of Order. Moreover, FPC Starkville s attempt to skirt the effect of its allegiance to the denomination by pointing to instances where it disclaimed the PC(USA) s trust interest in its property is of no effect whatsoever, as it lacked the power or authority to make such a disclaimer under the constitution it adopted. See Linton v. Flowers, 94 So. 2d 615, (Miss. 1957)(holding that membership in a denomination binds the congregation to the denomination s constitution and rules of discipline and any action which is not authorized by the constitution and/or rules of discipline are invalid and of no effect). This is especially true with respect to the RESERVATION provision contained within FPC Starkville s bylaws, as the Book of Order does not contain a provision authorizing a session or congregation to unilaterally extinguish the PC(USA) s trust interest in church property. Accordingly, the trial court s grant of summary judgment in favor of FPC Starkville constitutes a clear error of law under the Church of God and Shirley decisions. b. FPC Starkville s 1984 resolution created an express trust in favor of the PC(USA). FPC Starkville disputes Presbytery s contention that its congregation s 1984 resolution and its corporate Bylaws are sufficient to create an express trust in favor of the PC(USA) and, additionally, that both documents fail to demonstrate the intent required to create such a trust. See FPC Starkville s Brief at pp

7 As FPC Starkville correctly contends, creation of a trust in real property occurs only when a settlor who possesses sufficient capacity indicates its intent to create such a trust through a written instrument. MISS. CODE ANN & When the settlor of a trust is a religious society, capacity to create the trust is demonstrated through a resolution adopted by a majority of the entity s membership which authorizes such trust. MISS. CODE ANN However, FPC Starkville is incorrect when it states that a trust requires identification of a definite beneficiary, as charitable trusts, such as those created for the advancement of religion, may be created without naming a definite beneficiary. MISS. CODE ANN (a)(3)(A) & In its 1984 resolution, FPC Starkville declares that the Book of Order of the Presbyterian Church (U.S.A.) in Chapter VIII... contains provisions which are somewhat different from those contained in the Book of Church Order of the Presbyterian Church in the United States in Chapter VI and that it will hold title to its property and exercise its privileges of incorporation under the provisions of the Book of Church Order, Presbyterian Church in the United States ( Edition). C.P. at Though FPC Starkville readily acknowledges that this resolution is a membership-approved trust instrument, it conveniently contends that the plain language of the resolution fails to express its true intent. FPC Starkville s brief at p. 28 Instead, FPC Starkville claims its intent can only be discerned after the resolution is roughly translated three decades after its adoption. Id. at p. 29. Notably, the intent derived through FPC Starkville s rough translat[ion] entirely contradicts the intent discerned through a plain reading of the language employed in the resolution. Additionally, FPC Starkville fails to recognize that a court may not venture outside of the four corners of the trust agreement to consider evidence or argument regarding the alleged intent behind that agreement when the language employed is clear and unambiguous. Malone v. Malone, 379 So. 2d 926, (Miss. 1980)(holding that consideration of the intent behind creation of trust 4

8 or will is only appropriate when the language used in the instrument is susceptible to more than one construction); see also Hart v. First Nat l Bank of Jackson, 103 So. 2d 406, 409 (Miss. 1958)(holding that general rules of construction of written instruments apply to the construction of trust instruments and courts must give effect to the plain and unambiguous language used in the trust agreement). Critical to an analysis and understanding of the intent expressed in FPC Starkville s resolution is recognition that the property exception provision contained within the Book of Order did not permit a congregation to exempt itself from the entire PC(USA) property chapter. C.P. at 562; R.E. at 53. Rather, it allowed a congregation to exempt itself from provisions in Book of Order property chapter which the congregation was not subject to under its former denomination s constitution prior to Reunion. Id. With that in mind, it is evident from a plain reading of FPC Starkville s resolution that the congregation recognized that the property chapter in the PC(USA) s Book of Order differed from the property chapter in the PCUS s Book of Church Order [ Edition]. C.P. at 562, 628. A comparison of the property chapter in the Book of Order to the property chapter contained within the Book of Church Order validates FPC Starkville s understanding, as the PC(USA) property chapter requires congregations to obtain the denomination s permission to buy, sell or otherwise encumber church property, whereas the PCUS property chapter does not require denominational approval of such transactions. C.P. at 562, 628. Thus, it was this difference which motivated FPC Starkville s congregation to exercise its right to hold title to its property free of the Book of Order provision requiring the denomination s approval to buy, sell or encumber church property. Despite FPC Starkville s specious assertion that the resolution says nothing about a trust, that does not matter, the PC(USA) Book of Order is indisputably explicit that a congregation could 5

9 not exempt itself from any provision of its property chapter unless it was not subject to a similar provision under its old constitution. Since the PCUS property chapter included a trust clause, FPC Starkville lacked the authority to disclaim the trust clause in the Book of Order. Thus, inherent in FPC Starkville s resolution to exempt itself from the provision of the Book of Order which it was not subject to under the Book of Church Order is its acceptance of those provisions which it was subject to prior to Reunion. Accordingly, not only is FPC Starkville s rough translat[ion] unnecessary, the plain, unambiguous language in the 1984 resolution demonstrates that FPC Starkville intended to hold title to its property in trust for the benefit of the PC(USA), subject to a reservation of its rights to buy, sell or encumber property without denominational approval, as provided for in the PCUS Book of Church Order. In an effort to avoid subjection to the trust clause, FPC Starkville alleges that resolution s express language is not indicative of its intent. Instead, FPC Starkville contends the resolution is facially an attempt to distance FPC Starkville s property from the PC(USA). FPC Starkville s contention is belied by the resolution s express language, i.e. that it was only exempting itself from those provisions which it was not subject to prior to reunion, and is also irrelevant, as the language employed in the resolution is neither vague nor ambiguous. Accordingly, the resolution definitively evidences FPC Starkville s decision to hold title to its property subject to the PC(USA) s trust interest, thereby precluding consideration of FPC Starkville s post-hoc rough translat[ion], as well as argument and extrinsic evidence, to vary the intent it so clearly expressed. As such, the trial court erred by considering extraneous evidence and argument of FPC Starkville s intent and by failing to find that FPC Starkville created an express trust in favor of the PC(USA) through its resolution. C.P. at c. FPC Starkville s alleged misunderstandings regarding the PC(USA) property 6

10 interest chapter and the effect of exemption do not invalidate the PC(USA) s trust in its property. In an effort to invalidate the PC(USA) s trust interest in its property, FPC Starkville argues imposition of such a trust would be inequitable due to its alleged misunderstanding of statements made by the PCUS and PC(USA) regarding the effect of their respective trust clauses, as well as its misinterpretation of the exemption provision contained within the property chapter of the Book of Order. FPC Starkville s Br. at p For instance, FPC Starkville alleges that PC(USA) officials assured them that, by exempting itself from the property provisions of the Book of Order, it would hold title to its property as it always has in the past. Id. at p. 32. The Book of Order property exception reads, in pertinent part, as follows: The provisions of this chapter shall apply to all congregations of the [PC(USA)] except that any congregation 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 the [PCUS]... to form the [PC(USA)], shall be excused from that provision of this chapter if the congregation, within a period of eight years following the establishment of the Presbyterian Church (U.S.A.), vote to be exempt from such provision... 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 [Reunion]. C.P. at 562; R.E. at 53 (emphasis added). It is clear that the alleged PC(USA) statement is actually true, as FPC Starkville does hold title to its property as it had prior to reunion (i.e., the past ) and, since the PCUS Book of Church Order also contained a trust clause, FPC Starkville continues to hold title to its property in the same manner as it would had reunion not occurred. It is equally clear that FPC Starkville takes issue with the relevant time-period which the PC(USA) intended when using the phrase in the past. As these statements were made by the PC(USA) in response to inquiries on behalf of FPC Starkville regarding the effect of the property exception, it stands to 7

11 reason that in the past is necessarily limited in a manner which is consistent with the temporal references contained within that provision of the Book of Order. Thus, in the past would mean that FPC Starkville would hold title as it had under the constitution it was subject to prior to Reunion, i.e. the Book of Church Order [ Edition]. For these reasons, the PC(USA) is not responsible for FPC Starkville s misunderstanding of the effect of the property exemption or its subjection to a trust clause. Similarly, FPC Starkville claims the PCUS assured it on numerous occasions that the PCUS trust clause would neither interfere with its exercise of the privileges of property ownership nor encumber church property in any way. Brief of FPC Starkville at p. 33. This statement is also true, as the PCUS property chapter did not require the congregations to seek the denomination s permission to buy, sell or encumber its property. The PCUS s statements cited by FPC Starkville which concern a congregation s ownership of church property remain true even when the PC(USA) claims ownership of a dissolved or extinct congregation s church property. 2 Brief of FPC Starkville at pp ; C.P. at 562; R.E. at 53 (Book of Order at G ). In such cases, the congregation would no longer exist to hold title, resulting in reversion of title to the church property to the PC(USA). Id. Consequently, the PC(USA) s right to the church property in light of such events is one example of its possession of a beneficial interest in church property which is not inconsistent with a congregation s ownership of said property. 2 G Property of a Dissolved or Extinct Congregation: Whenever a congregation is formally dissolved by the presbytery, or has become extinct by reason of the dispersal of its members, the abandonment of its work, or other cause, such property as it may have shall be held, used, and applied for such uses, purposes, and trusts as the presbytery may direct, limit, and appoint, or such property may be sold or disposed of as the presbytery may direct, in conformity with the Constitution of the Presbyterian Church (U.S.A.). 8

12 While FPC Starkville acts as though it was misled by both denominations, such feeling is unwarranted and, in any event, not the fault of the PC(USA), as the results are entirely consistent with the applicable Book of Order provisions. Moreover, they are completely concordant with Dr. James Long s understanding of the effect of those provisions in 1988 or According to FPC Starkville s August 6, 1989 minutes, Dr. Long brought it to the attention of [FPC Starkville s] Session that he had talked with David Snellgrove at Presbytery regarding the property question and determined that in 1984 [FPC Starkville] had passed a resolution at a Congregational meeting to remain under the Old Book of Church Order. C.P. at Dr. Long even related to the Session what Presbytery told him would happen to its property under the Old Book of Church Order, stating: Id. 1. If there was a split in the congregation, the Presbytery would decide which half would get the property. 2. If our church is dissolved then Presbytery gets the property. 3. If we pull out of the Presbyterian Church, we get our property 3. Apparently forgetting Presbytery s candor with Dr. Long, FPC Starkville now claims the leadership of the church was acutely concerned with protecting the church s property rights and retaining complete ownership of its property. FPC Starkville s Br. at p. 30. This feigned concern with ownership of its property is simply incompatible with its decision to remain a member congregation of the PC(USA) when Presbytery made it fully aware that it could invoke Article 13 within eight years of reunion and leave the denomination with its property. See Presbytery s Br. At pp While FPC Starkville s own records demonstrate it was not misled by the PC(USA) 3 When David Snellgrove reported these three scenarios to Dr. Long, FPC Starkville could still seek dismissal from the PC(USA) under Article 13 and retain its property. C.P. at

13 regarding its rights in the church property, it is still attempting to revise history and discredit the denomination through the self-serving affidavit testimony of Dr. Long. Such conduct is simply insufficient to defeat the PC(USA) s trust interest in the church property. d. The PC(USA) can claim a trust interest in FPC Starkville s property under the PCUS Trust Clause. In another attempt at evading the PC(USA) s trust interest in the church property, FPC Starkville contends that the PC(USA) cannot claim a trust interest through the PCUS trust clause. According to FPC Starkville, the language contained within the PCUS trust clause would only operate to create a trust interest in favor of the PCUS and since the PCUS is no longer in existence, any interest it would be entitled to reverts back to FPC Starkville. FPC Starkville s Br. at p In support of the above-contentions, FPC Starkville references an excerpt from the Articles of Agreement entered into by the PCUS and the United Presbyterian Church in the United States of America ( UPC ). C.P. at In essence, the quoted excerpt provides that, upon reunion, the two denominations will cease to exist as separate entities and will be united as one reunited church, the PC(USA). Crucially, FPC Starkville failed to relate that the PCUS and the UPC expressly agreed that the PC(USA) will be in all ecclesiastical, judicial, legal and other respects the continuing entity of the [PCUS] and [UPC] in those same Articles of Agreement. Prior to addressing FPC Starkville s meritless argument, it must be noted that Presbytery does not contend its trust interest arises under the PCUS trust clause and is wary that FPC Starkville has intentionally misinterpreted the source of the PC(USA) s interest in an attempt to validate or evidence its claimed misunderstanding of the property exception in the Book of Order. See pp. 5-6, supra; see also Presbytery s Br. pp. 11. Regardless of its intent, FPC Starkville s argument is of no effect whatsoever. Even if the PC(USA) claimed a trust interest in the church property under the 10

14 PC(US) trust clause, by the very terms of the Articles of Agreement, the PC(USA) acceded to all of the rights belonging to the PCUS, which would include rights or interests derived under the Book of Church Order trust clause. Moreover, under the law of the PC(USA) s state of incorporation, upon a merger of two corporations, all rights of those corporations vest in the entity created by the merger. See 15 Pa.C.S.A. 336 ( Effect of Merger ). Thus, FPC Starkville has not only misconstrued the origin of the PC(USA) s trust interest in the church property, but it has not even proffered a valid argument which would it relieve it from the trust clause were it been correct about the nature of the PC(USA) s trust interest. e. The affidavit of the Presbyterian Church (U.S.A.), A Corporation is not an express disclaimer of any interest in the FPC Starkville s property. FPC Starkville takes issue with the Presbytery s construction of the affidavit of Presbyterian Church (U.S.A.), A Corporation, arguing that the PC(USA) trust clauses fail to create a trust over its property because they do not identify a beneficiary. FPC Starkville s Br. at p More specifically, FPC Starkville asserts that, because the PC(USA) constitution identifies the denomination as consisting of each and every congregation, session, presbytery, synod, and the General Assembly, a definite beneficiary of the trust interest in the church property at issue is incapable of identification. Id. As argued by Presbytery in its initial brief on appeal, Presbyterian Church (U.S.A.), A Corporation s disclaimer of a trust interest in FPC Starkville s property was not a disclaimer of a trust interest in favor of the denomination. See Presbytery s Br. at p Instead, the affiant was simply indicating that reference to the PC(USA) within the trust clause was actually a reference to the denomination as a whole and not the Corporation. Since the Corporation was not named as the beneficiary in the trust clause, it stands to reason that it would disclaim any interest in the church 11

15 property at issue. Thus, despite FPC Starkville s exasperation at the fact that the PC(USA) denomination and the Presbyterian Church (U.S.A.), A Corporation are actually separate entities, this construction is consistent with the provisions of the Book of Order, as the Presbyterian Church (U.S.A.), A Corporation is expressly absent from the list of church bodies and councils which comprise the PC(USA) denomination as a whole. Despite FPC Starkville s argument to the contrary, the PC(USA) trust clause does identify a beneficary of the trust, stating that a congregation s church property is held nevertheless for the use and benefit of the denomination. As the various church bodies and councils comprising the denomination are set forth in the Book of Order, it is clear that the trust is for their benefit. Even if the identity of the denomination was not clearly set forth in the Book of Order, the trust clause could still create a valid trust interest in favor of the PC(USA), as charitable trusts may be created without identification of a definite beneficiary when their purpose is the advancement of religion. See MISS. CODE ANN (a)(3)(A) & In this instance, the PC(USA) trust clause provides that the congregation is holding title to its property for the use and benefit of the PC(USA) denomination. This is equivalent to holding property for the advancement of religion. Thus, even if its found that identification of the denomination as a whole is too indefinite to create an express trust, the PC(USA) trust clause satisfies the requirements for creation of a charitable trust since it indicates that title to the church property is held for the use and benefit of the denomination. Accordingly, the lower court s reliance on the affidavit of Presbyterian Church (U.S.A.), A Corporation was erroneous and warrants reversal of its grant of summary judgment in favor of FPC Starkville. f. The trial court s determination regarding the lack of a resulting and constructive trust in favor of the PC(USA) still warrant reversal. 12

16 While FPC Starkville argues that the PC(USA) is not entitled to either a resulting or constructive trust over the church property, it has not addressed the basis for Presbytery s appeal of the chancellor s refusal to impose either a constructive or resulting trust over the church property. As argued in its brief, the chancellor s decision that the church property was not subject to a resulting trust in favor of the PC(USA) is appropriately overturned, as it was based on erroneous factual findings regarding the lower court s belief that the PCUS trust clause was invalid due to its recent adoption prior to Reunion, its own misinterpretation of the PCUS s statement that congregations would continue to have beneficial ownership of their property, and the ambiguity it perceived in Appellee s reference to holding title to church property in the manner in which it had under the PCUS Book of Church Order ( Edition). Similarly, the lower court s decision that the church property was not subject to a constructive trust is the product of its failure to appreciate and consider the membership benefits received by FPC Starkville, as well as its misunderstanding of the effect of the property exception within the Book of Order, and, thus, was the product of erroneous factual findings which warrants reversal of its grant of summary judgment in favor of Appellee on this issue. g. FPC Starkville has failed to demonstrate the Chancellor correctly applied the decisions in Shirley, Jones v. Wolf, or Timberridge. While FPC Starkville contends the lower court correctly applied the decisions of Shirley v. Christian Methodist Episcopal Church, Jones v. Wolf, and Presbytery of Greater Atlanta, Inc. v. Timberridge Presbyterian Church, Inc., it has either downplayed or outright ignored facts which result in the relevance and applicability of these decisions to the facts presented to the lower court in this matter. For instance, FPC Starkville claims the only similarity between the Shirley decision and its 13

17 relationship with Presbytery is that FPC Starkville has at times participated in denominationallysponsored activities. FPC Starkville s Br. at p. 44. However, FPC Starkville s argument relies upon faulty premises, such as its misconception that it had the authority to reject the PC(USA) s trust interest in the church property, its misrepresentation that it existed for 160 years before associating with the PC(USA), as it was a unquestionably a member of denominations which were the predecessor to the PC(USA), and its misperception that the PC(USA) has disclaimed rights in its property. With respect to the Wolf decision, FPC Starkville argues that a trust clause contained within a denomination s constitution is not a legally cognizable instrument, despite this Court s decision in Shirley, wherein a trust in favor of a denomination was imposed on the congregation s church property under the applicable provisions of the denomination s Book of Discipline, as well as the Timberridge court s imposition of a similar trust under the trust clause contained in the PC(USA) s Book of Order. Finally, it attempts to dissuade this Court from considering the Timberridge decision, arguing its inapplicability due to a Georgia statute which the Court references in its decision. Much like its attempts to distinguish Shirley and Wolf, FPC Starkville s contention regarding the inapplicability of Timberridge is patently flawed, as the Timberridge Court was clear that its decision did not rest upon the actual statute in question, but, instead, was the product of Georgia s policy reflected in [that statute] as well as the denomination s constitution and other documents. Presbytery of Greater Atlanta, Inc. v. Timberridge Presbyterian Church, Inc., 290 Ga. 272, (Ga. 2011). As such, the chancellor erred in his misapplication of these decisions to the facts of this matter which constitutes a clear error of law warranting reversal. h. Presbytery s First Amendment Rights are violated by the lower court s 14

18 permanent injunction. In an attempt to avoid reversal of the lower court s erroneous entry of the permanent injunction which has violated Presbytery s First Amendment rights, FPC Starkville asserts that it has mooted this error by repudiating its membership in the PC(USA). FPC Starkville may believe this action has somehow protected its members and the church property from the authority of the PC(USA), however, its actions were unauthorized by the Book of Order and, moreover, were a breach of the fiduciary duties owed to FPC Starkville s congregation by the leadership of First Presbyterian Church PCUSA of Starkville, Mississippi. See In re Andrews, 560 B.R. 429, 445 (S.D. Miss. 2016)(holding that corporate officers of a religious organization owe fiduciary duties to its members and are liable to those members when they allow their personal interests to prevail over the interests of the corporation and its members). By engaging in unauthorized and illegal acts to effect a takeover of the corporation, FPC Starkville s former leadership has directly contravened the corporation s articles of incorporation and bylaws and have violated the fiduciary duties they owed to the corporation. In light of their rejection of the PC(USA) s authority and the breach of their fiduciary duties, Presbytery, on behalf of the PC(USA), has every right under the Book of Order, as well as the common law of this State, to eject the former members of FPC Starkville and return the church property to those members who have remained loyal to the PC(USA). See Mt. Helm Baptist Church v. Jones, 30 So. 714, (Miss. 1901)(holding that majority faction which has rejected the Baptist faith and ejected the minority faction which remained loyal to the Baptist faith have no right or title to the church property and cannot use that property to establish a new church under a new or different denomination). As the lower court s permanent injunction unconstitutionally prohibits the PC(USA) s ability to take these actions, it must be reversed. III. Conclusion 15

19 As set forth herein and in Presbytery s Appellant s Brief, Presbytery is entitled to relief from the Chancery Court of Oktibbeha County, Mississippi s entry of summary judgment which declared that the PC(USA) does not have a trust interest in FPC Starkville s property, as that judgment is premised upon numerous errors of fact and misapplication of relevant law, as well as the lower court s entry of a permanent injunction precluding Presbytery from exercising its ecclesiastical authority with respect to the church property and its membership. RESPECTFULLY SUBMITTED, this, the 11th day of May, PRESBYTERY OF ST. ANDREW, PRESBYTERIAN CHURCH U.S.A., INC., Appellant OF COUNSEL: CAMPBELL DELONG, LLP 923 Washington Avenue Post Office Box 1856 Greenville, MS Telephone: (662) Fax: (662) By: /s/ Andrew F. Tominello P. Scott Phillips, Esq., MSB No Andrew F. Tominello, Esq., MSB No Counsel for Appellant 16

20 CERTIFICATE OF SERVICE I, Andrew F. Tominello, do hereby certify that I have this day mailed a true and correct copy of the foregoing motion to the person(s) indicated below and electronically filed said motion with the Clerk of Court using the MEC system: Dolton W. McAlpin, Esq. DOLTON W. McALPIN, P.A Louisville St., Suite E. Starkville, MS Ryan K. French, Esq. Lloyd J. Lunceford, Esq. Eugene R. Groves TAYLOR, PORTER, BROOKS & PHILLIPS, LLP 451 Florida St., 8 th Floor Baton Rogue, LA Honorable H. J. Davidson, Jr. Post Office Box 684 Columbus, MS THIS the 30th day of August, Andrew F. Tominello 17