author: BEAM, JUSTICE, FOR THE COURT:

text:
    Victor MAY v. Kenneth Jarnell AUSTIN, a Minor, BY AND THROUGH his Parents and Natural Guardians, Rex AUSTIN and Regina Austin and Mississippi Farm Bureau Casualty Insurance Company
    NO. 2017-CA-00211-SCT
    Supreme Court of Mississippi.
    April 12, 2018
    DON H. EVANSCHRISTIE EVANS OGDEN, ATTORNEYS FOR APPELLANT.
    STEVEN JAMES GRIFFIN JOE S. DEATON, III RICHARD JASON CANTERBURY, ATTORNEYS FOR APPELLEES.
    BEFORE KITCHENS, P.J., BEAM AND CHAMBERLIN, JJ.
   BEAM, JUSTICE, FOR THE COURT:

¶ 1. This appeal stems from the Hinds County Circuit Court's decision to dismiss the plaintiff's claims with prejudice. The circuit court entered its decision after finding that Appellant Victor May willfully concealed his past injuries and accidents, significantly prejudicing the defendants' ability to proceed with their case. After reviewing the circuit court's decision for an abuse of discretion, we find that the circuit court did not err in finding that the plaintiff committed numerous discovery violations which resulted in inordinate delay and increased costs to the defendants. As a result, we affirm the decision of the circuit court.

FACTS AND PROCEDURAL HISTORY

¶ 2. On April 19, 2011, the vehicles driven by Victor May and Kenneth Austin collided at the intersection of Northside Drive and Hanging Moss Road in Jackson, Mississippi. Claiming that the wreck produced injuries to his neck, lower back, and right shoulder, May filed suit in Hinds County Circuit Court, seeking damages for Austin's alleged negligence in causing the accident.

¶ 3. Shortly after May filed his complaint, the parties engaged in discovery. A year and a half later, the defendants filed a motion requesting that the court dismiss the matter with prejudice, due to May's inconsistent and deliberately false testimony throughout the discovery process. The defendants cited the plaintiff's interrogatory and production responses and compared them to the testimony provided at a later deposition. In these responses, May consistently denied having had any injuries or medical treatment to his neck, lower back, and right shoulder prior to the April 2011 collision. The defense also referenced medical records independently obtained via subpoena from the Kosciusko Medical Clinic, which indicated that the plaintiff not only previously suffered from significant, unrelated injuries to his neck and back, but that he was treated just four months prior to the accident for issues related to his right shoulder.

¶ 4. The circuit court denied the defendants' motion. Noting first that the court held the matter under advisement until this Court ruled on the issues in Kinzie v. Belk Department Stores , 164 So.3d 974 (Miss. 2015), the trial court reasoned that, much like the decision in Kinzie , dismissal as a sanction for the discovery violations would not be warranted. Although the court found that "the [p]laintiff's false and/or misleading discovery answers denying any prior injury to his neck or shoulder did constitute a violation of the discovery rules," it reasoned that such a violation was not indicative of a motive to engage in a pattern of deception. Rather, the court determined that the plaintiff's willingness to sign a medical release authorization, enabling the defendants to obtain the medical records which conflicted with the plaintiff's testimony, showed that any alleged deception was not intentional. As a result, the court allowed the defendants to move for lesser sanctions but decided that dismissal was not appropriate.

¶ 5. Within a week, the defendants filed a motion for reconsideration of the court's order denying their motion to dismiss. Therein, the defense claimed the court errantly based its decision on a misrepresentation by the plaintiff. Citing the court's order, the defendants suggested that the court's decision was largely based on the plaintiff's execution of a medical authorization, which the court determined was at least "slightly indicative of a lack of motive to engage in a pattern of deception." However, the defendants contended that such an authorization was never signed.

¶ 6. Pointing to Austin's interrogatories, the defendants explained that when the plaintiff was asked to sign a release for his medical records, he blatantly objected to signing any sort of authorization and persistently denied any prior injuries or related medical conditions. The defendants alleged that at no time after this refusal did the plaintiff provide a medical authorization, and that such refusal created hardship and an inability to prepare an adequate defense. Consequently, Austin was forced to subpoena May's medical providers for the information. The defendants claimed that it was only after they obtained May's prior medical records that they learned of his earlier problems and injuries involving his neck, shoulder, and back.

¶ 7. On May 6, 2016, the trial court issued its order granting the defendant's motion for reconsideration. Before describing the time line as it related to the defendant's independent discovery of May's injuries, the trial court explained its understanding of the proposed violations.

During discovery, the Plaintiff unequivocally denied having ever sustained injuries or having previously sought medical treatment regarding any of those body parts he claimed to be injured solely due to the subject car accident-specifically his neck, lower back and right shoulder. The Defendants subpoenaed Plaintiff May's prior medical records and discovered that May had been untruthful about his medical history. Plaintiff May's lack of candor was clear both under oath in his deposition and in sworn written discovery responses. In addition, after Plaintiff May was caught, his litigation subterfuge continued. In a feeble attempt to excuse his earlier lack of candor in the deposition, Plaintiff May provided a sworn affidavit contradicting portions of his earlier sworn testimony without any explanation as to the inconsistencies, making it impossible for any party, or for this Court, to ascertain which sworn version to believe as true.

The trial court then identified the two issues central to the motion for reconsideration: May's denial of any car accidents, neck injuries, or neck-related treatment prior to the collision with Austin, and the recently discovered medical records related to severe shoulder-pain treatment May had obtained just four months prior to the subject accident. After identifying these concerns, the court used a "totality of the circumstances" approach to granting dismissal. Noting first that the plaintiff took an inordinate amount of time to respond to the defendant's original motion to dismiss, the court acknowledged that the plaintiff's eventual response included an affidavit from Victor May. Therein, May swore that he "voluntarily signed a medical authorization giving [d]efense counsel access to [his] prior records. [He] was not intending to hide or mislead anyone as to [his] prior medical condition." Basing its ruling on plaintiff's counsel's representation that May voluntarily had signed a medical authorization so the defendants could obtain his prior records with impunity, the court denied the initial motion to dismiss.

¶ 8. The trial court noted that it initially found May's assurance that he voluntarily cooperated with the defendant's discovery requests by signing a blank medical authorization to be extremely relevant. May's alleged cooperation in providing this authorization became a deciding factor as to whether the discovery violations had been willful or grossly inadvertent. The court decided that, although May had committed unmistakable discovery violations regarding issues fundamental to the defendants' ability to defend the lawsuit, by providing the medical authorizations, he had demonstrated a lack of motive to engage in a pattern of deception. As a result, the court ruled initially that, if requested, lesser sanctions may be appropriate, but dismissal was not warranted.

¶ 9. Prior to the hearing on the motion for reconsideration, the court considered its previous ruling and the parties' claims regarding the existence of the medical authorization. On August 3, 2015-more than a month prior to the motion's hearing-the court requested that "the Plaintiff, within ten (10) days from today's date, [ ] submit copies of the medical authorization or authorizations executed by the Plaintiff ... [as] described in the Plaintiff's Response to the Defendant's Motion to Reconsider and at the previous hearing on the original motion [to dismiss]." May failed to respond to the court's email or provide any additional documentation, as directed. Furthermore, at the hearing on September 28, 2015, plaintiff's counsel admitted that he did not have a copy of any medical authorization allegedly signed by the plaintiff and could not provide any proof that such authorization existed.

¶ 10. The trial court noted that a plaintiff is not required to provide a defendant with a signed medical authorization when not specific to a medical provider; though it is routinely done to facilitate the discovery process. With that in mind, May's asserted willingness to assist the defense in the discovery process was a deciding factor in the trial court's initial finding that he lacked intent to conceal any prior injuries or medical conditions from the defendants. After finding that May's "lies and omissions during discovery ... compounded, rather than mitigated, the factual misrepresentation by the [p]laintiff and his counsel, which ha[ve] now been shown to be false," the court found that dismissal with prejudice was "the only reasonable and sufficient sanction available under these circumstances to end this ongoing pattern of deceit and to deter others from similar, reprehensible conduct in litigation."

¶ 11. May appeals the trial court's ruling, claiming that his discovery responses did not justify dismissal of the case, and that the court erred in finding that he lied about executing the medical release for the defendants. Accordingly, the sole issue on appeal is whether the trial court was justified in dismissing the case after making factual findings concerning May's repeated and unequivocal misrepresentations throughout discovery.

LAW AND ANALYSIS

I. Standard of Review

¶ 12. This Court recognizes the trial court's inherent power to dismiss a case as a "means necessary for orderly expedition of justice and the court's control of its own docket. Nevertheless, the trial court should dismiss a cause of action for failure to comply with discovery only under the most extreme circumstances." Pierce v. Heritage Props., Inc. , 688 So.2d 1385, 1388 (Miss. 1997).

¶ 13. The Court reviews such discovery-violation dismissals under the abuse-of-discretion standard. Id. "Abuse of discretion is the most deferential standard of review appellate courts employ." Ashmore v. Mississippi Auth. on Educ. Television , 148 So.3d 977, 982 (Miss. 2014). "When this Court reviews a decision that is within the trial court's discretion, it first asks if the court below applied the correct legal standard. If the trial court applied the right standard, then this Court considers whether the decision was one of several reasonable ones which could have been made." Pierce , 688 So.2d at 1388. "In short, if the trial court applies the 'correct legal standard,' [this Court] must affirm the decision regardless of what any [justice] individually might have ruled had [her or she] been the judge, unless there is a 'definite and firm conviction that the court below committed error.' " Ashmore , 148 So.3d at 982. If there is no "clear error in judgment in the conclusion it reached upon weighing the relevant factors," this Court will affirm the trial court's dismissal. Cooper v. State Farm Fire and Cas. Co. , 568 So.2d 687, 692 (Miss. 1990).

II. Legal Standard: Discovery Violation Dismissals

¶ 14. A trial court's authority to sanction a party for discovery violations is provided for by Mississippi Rule of Civil Procedure 37. The rule empowers trial courts with the discretionary authority to "impose upon any party or counsel such sanctions as may be just." M.R.C.P. 37. This Court has found that those justified sanctions include the "death penalty" of a civil action-dismissal with prejudice-"when the deterrent value of Rule 37 cannot be achieved by the use of less drastic sanctions." Scoggins v. Ellzey Beverages, Inc. , 743 So.2d 990, 996 (Miss. 1999) (quoting Pierce , 688 So.2d at 1389.)

¶ 15. This Court evaluated the application of Rule 37 and the appropriateness of dismissal as a sanction in Pierce . There, the plaintiff sought damages from several defendants on the theories of negligence, breach of warranty, and strict liability, after suffering injuries when a fan installed above her bed fell from the ceiling and landed on top of her. Pierce , 688 So.2d at 1387. Throughout discovery, Pierce maintained that she was alone when the fan fell from the ceiling, making her the only witness to the event. However, following a trial on the matter, and the trial court's decision to vacate the jury's verdict, the defense discovered that Pierce was not alone when the fan fell; rather, her male companion was identified as having witnessed the accident as well. Id. at 1388.

¶ 16. Pierce responded to the newly discovered information by acknowledging that she had given false testimony. She argued that she never had intended to deceive the court; instead, she intended only to shield her parents from the knowledge that their daughter had entertained an overnight guest that evening. The court reviewed this information and determined that Pierce's "intentional presentation of false testimony warranted the sanction of dismissal with prejudice." Pierce , 688 So.2d at 1388.

¶ 17. On appeal, this Court adopted the Fifth Circuit's analysis of trial-court discovery violation dismissals. The standard requires that:

First, dismissal is authorized only when the failure to comply with the court's order results from wilfulness or bad faith, and not from the inability to comply. Dismissal is proper only in a situation where the deterrent value of Rule 37 cannot be substantially achieved by the use of less drastic sanctions. Another consideration is whether the other party's preparation for trial was substantially prejudiced. Finally, dismissal may be inappropriate when neglect is plainly attributable to an attorney rather than a blameless client, or when a party's simple negligence is grounded in confusion or sincere misunderstanding of the court's orders.

Pierce , 688 So.2d at 1389 (citing Batson v. Neal Spelce Assocs. , 765 F.2d 511, 514 (5th Cir. 1985) ).

¶ 18. In applying this analysis, the Court determined that Pierce's failure to comply was a result of willfulness and bad faith, which obstructed the progress of litigation. The Court agreed that less drastic sanctions in the form of fees or procedural mechanisms would not achieve the deterrent value of dismissal. Instead, it found that any sanction other than dismissal for such "manifestly false" representations would "virtually allow the plaintiff to get away with lying under oath without meaningful penalty." Pierce , 688 So.2d at 1390-91. The Court then reviewed whether the defendants were substantially prejudiced in their ability to prepare for trial and whether neglect was "plainly attributable to an attorney rather than a blameless client." Id. at 1389. The Court first provided that "there is no requirement that the defendant be substantially prejudiced by the absence of evidence." Id. at 1391. It then determined that the neglect at issue was plainly attributable to Pierce alone. Id. With "substantial evidence in the record to support her admitted deception," the Court found that the trial court in no way abused its discretion upon dismissal of the case. Id.

¶ 19. Since the Pierce decision, this Court and the Court of Appeals has applied the above analysis to affirm a myriad of discovery-violation dismissals. Notably, the Court in Scoggins , Ashmore , and Ferguson reviewed violations similar to those in this case and determined that the trial courts were justified in their decisions to dismiss. See Scoggins v. Ellzey Beverages, Inc. , 743 So.2d 990 (Miss. 1999) ; Ashmore v. Mississippi Auth. on Educ. Television , 148 So.3d 977 (Miss. 2014) ; and Ferguson v. Univ. of Mississippi Med. Ctr ., 179 So.3d 1060 (Miss. 2015). While each of these matters concerned unique fact patterns and requests for the Court, their discovery violations embraced a common thread: each plaintiff engaged in a "pattern of false testimony that struck to the core of the material issues in the lawsuit." Ashmore , 148 So.3d at 979.

¶ 20. In Scoggins , the plaintiff affirmatively stated that, other than the accident at issue and a softball injury in 1958, she had never sustained an injury to the portions of her body which she claimed were injured as a result of the defendants' negligence. However, through medical records later obtained by the defendants, the court learned that Scoggins "had been examined and/or treated for pain, numbness and/or arthritis in her left leg, back, hip and/or spine on thirty-five separate visits from October 5, 1976, through January 21, 1994." Scoggins , 743 So.2d at 990-91. Additionally, less than three months before the accident on March 4, 1994, Scoggins visited her physician and complained of pain in "the left shoulder" and "tenderness, back pain and stiffness in the spine." Id. at 992. The trial court found-and this Court agreed-that the plaintiff's attempts to attribute such flagrant discrepancies to memory loss and recent deaths in her family were seemingly selective and not credible explanations for the material misrepresentations. Id. at 993.

¶ 21. Similarly, in Ashmore , the plaintiffs failed to disclose a previous back injury, previous knee surgeries, and an injury which occurred after the subject motor-vehicle collision. The trial court determined that such misrepresentations were willful and represented a "deliberate attempt to subvert the judicial process." Ashmore , 148 So.3d at 981. This Court agreed. Finding that the trial court was well within its discretion to dismiss the case under the circumstances, this Court ruled that dismissal was an appropriate and meaningful penalty, preventing the parties from "getting away with lying under oath." Ashmore , 148 So.3d at 986-87.

¶ 22. Likewise, we determined in Ferguson that dismissal of a substituted party-plaintiff was warranted because the plaintiff had signed a false affidavit, committing perjury regarding a key issue. Ferguson claimed that he had no specific recollection of swearing out the affidavit. Instead, he argued that he remembered being asked to sign something, but he was not certain what it was. Ferguson , 179 So.3d at 1064. Ferguson then testified that the contents of the affidavit were false. Id. The trial court dismissed the case and this Court affirmed. Finding that the judge recognized that he was required to impose the least restrictive sanction, this Court determined that dismissal was appropriate in light of Ferguson's conduct and misrepresentation in the case. Id. at 1066.

¶ 23. While the Pierce factors have been applied to many cases affirming a trial court's dismissal, several have also reversed the trial court's judgment, remanding for the case to move forward. One such case is the recent ruling in Kinzie v. Belk Department Stores, L.P. , 164 So.3d 974 (Miss. 2015). There, this Court noted that "where the discovery violation at issue is less extreme and open to potential truthful interpretations, this Court will not hesitate to reverse a trial court's Rule 37 dismissal." Kinzie , 164 So.3d at 978. Mindful of this standard, the Court determined that the plaintiff's testimony that he was no longer "able to enjoy tinkering with automobiles as the stooping, bending, and squatting are painful" did not merit dismissal. Id. The Court found that the defendant's video footage revealing Kenzie's daily activities of walking around town and working in his shed did not establish "any kind of pattern of misleading or false responses." Id. at 979. Rather, the Court found that, while "Kinzie indisputably was injured," the "activity observed by the defendant's undercover video did not ... encompass any of the specific activities that he stated he no longer could perform." Id. at 978-79. As a result, the Court reversed the trial court's dismissal, noting that, although Kinzie's response was misleading, "the perceived falsehood arose in an isolated incident, and it certainly has not been established that Kinzie's statements in discovery indicate any kind of pattern of misleading or false responses." Under the Pierce standard, Kenzie's violation did not result from willfulness or bad faith, making the deterrent value of other sanctions under Rule 37 appropriate.

¶ 24. Through Pierce and its progeny, this Court has advanced a clear and uncomplicated standard under which courts of this state may analyze sanctions for discovery violations. On appeal, we have articulated our standard of review through the cases above, encouraging trial courts to dismiss matters when parties deliberately attempt to subvert the judicial process. Ashmore , 148 So.3d at 985. The Court favors dismissal as a sanction of last resort, although, when a party's failure to comply with the trial court's orders results from willfulness or bad faith, we will not hesitate to affirm. Scoggins , 743 So.2d at 996. When applying the Pierce factors, we must "stay true and honor the appropriate standard of review," allowing the discretionary decisions of a trial judge to stand. Ashmore , 148 So.3d at 985. If nothing in the trial record "suggests an 'arbitrary' or 'clearly erroneous' ruling was made by the learned trial judge, or instills in this Court a 'definite and firm conviction that the court below committed a clear error of judgment,' " we must affirm the dismissal. Id. at 987.

III. Applying the Standards to the Dismissal Sanction

¶ 25. As detailed above, this Court consistently has held that a "trial court should dismiss a cause of action for failure to comply with discovery only under the most extreme circumstances." Pierce , 688 So.2d at 1388. In reviewing a the circuit court's dismissal of May's claims, we find that the plaintiff engaged in a repeated course of misleading conduct by continuously providing false answers and failing to disclose relevant information. As detailed below, when the Pierce factors are applied to these facts, we fail to find any error by the trial court in choosing to dismiss the matter for these extreme discovery violations.

¶ 26. In its order granting dismissal, the trial court thoroughly applied the Pierce factors and first asked whether May's discovery violations were the result of willfulness or bad faith. After analyzing various cases handed down by this Court and the Court of Appeals, the trial court found that the facts in the case sub judice were even more egregious that those in Ashmore or the recent Court of Appeals opinion, Lockhart v. Stirling Properties, Inc., 170 So.3d 1235 (Miss. Ct. App. 2015). Throughout the interrogatories, requests for production, and deposition, May time and again denied that he had any injuries or medical issues related to those injuries alleged in this suit. After the defense secured medical records from May's physicians, such denials were proved false. Along with other misleading testimony, the trial court considered this difficulty to provide the truth, particularly as it related to the medical waiver May alleged to have signed. Giving the plaintiff the benefit of the doubt, the court provided May's counsel with ample opportunity to submit the signed waiver to the court as proof of his compliance with the discovery requests. However, at the hearing on the motion for reconsideration, May's counsel explained to the court that he did not have a copy of the waiver, and that it was not his responsibility to keep up with the defendant's correspondence.

¶ 27. Without proof of the waiver, May's early refusal to submit a medical authorization and his apparently false affidavit attesting to his previous submission of the form amounted to willful deceit that the court found to be particularly egregious. Taking all of these facts into consideration, the trial court determined that whether the waiver was signed became a factual issue as to the credibility of the two parties. After examining the available testimony and discovery as a whole, the court determined that May's narrative was simply not reliable. We find that the trial court diligently analyzed the first Pierce factor and properly determined that-under the facts of the case-May's repeated false answers and failure to disclose relevant information were willful discovery violations made in bad faith.

¶ 28. Moving to the second factor, the trial court then asked whether the deterrent value of Rule 37 could be achieved by lesser sanctions. There, the court determined that the ongoing nature of the lies and omissions regarding the medical authorization by May and his counsel warranted more than a fine or the ability to cross-examine the plaintiff. Consequently, any sanction less than dismissal would fail to discourage such bad-faith litigation conduct in the future. We agree and find that the court's "decision was not arbitrary, but was based on the law we established." Ashmore , 148 So.3d at 984. Therefore, under these circumstances, only a dismissal would serve the interest of justice.

¶ 29. Next, the court considered whether the wronged party had suffered prejudice as a result of the discovery violation. In Pierce , this Court held that there is no requirement that the "defendant be substantially prejudiced by the absence of evidence."

Pierce , 688 So.2d at 1391. Nevertheless, the trial court squarely addressed the defendants' harm, finding that the defense had been "significantly prejudiced by the plaintiff's costly refusal to cooperate with the Mississippi Rules of Court[,] namely through the inordinate delay cause[d] by the [p]laintiff's lack of candor and legal gymnastics required for the [d]efendants simply to get basic, crucial information to ably defend the lawsuit." While not required, the trial court thoroughly considered the prejudice sustained as a result of May's abuse of the judicial process. We find the court adequately considered prejudice as part of its decision to dismiss and properly assessed the defendants' harm due to May's discovery violations.

¶ 30. Finally, the court reviewed whether the discovery abuse was attributable solely to trial counsel instead of "a blameless client." While the judge took issue with plaintiff's counsel's role in the "litigation subterfuge," he found May to be anything but blameless for his "continuous cavalier lack of truthfulness." Although the trial court separately found that plaintiff's counsel made binding representations to the court about the medical authorizations signed by his client, we find that May's numerous and unequivocal ongoing lies and omissions about matters central to the litigation left the court and the defendants "without knowing what they [could] believe." As a result, the trial court thoroughly reviewed the fourth Pierce factor and properly addressed May's measure of fault in its entry of dismissal.

¶ 31. Having considered the trial court's application of the Pierce factors, we find that the court properly analyzed May's discovery violations, applied appropriate weight to each misrepresentation, and arrived at a justifiable conclusion. As we observed in Scoggins , "[w]hen this Court reviews a decision that is within the trial court's discretion, it first asks if the court below applied the correct legal standard. If the trial court applied the right legal standard, then this Court will affirm a trial court's decision unless there is a 'definite and firm conviction that the court below committed a clear error of judgment in the conclusion it reached upon weighing of relevant factors.' " Scoggins , 743 So.2d at 996 (quoting Pierce , 688 So.2d at 1388 ). Here, the trial court's order granting dismissal labored over the relevant caselaw and the applicable standard, supporting its decision to dismiss. Although the court recognized dismissal with prejudice as a last resort, it discerned no other sanction that might properly deter May or other future plaintiffs from abusing the discovery process with such blatant misrepresentations. Because the trial court's dismissal achieved the appropriate deterrent effect, preventing parties from dodging a meaningful penalty for lying under oath, we affirm the trial court's decision as a reasonable and appropriate ruling under Mississippi Rule of Civil Procedure 37. See Ashmore , 148 So.3d at 985.

CONCLUSION

¶ 32. After determining that Plaintiff May committed various, egregious discovery violations, the trial court properly applied an available Rule 37 sanction and ordered this case dismissed with prejudice. We have held that "[c]ourts, trial or appellate, should not condone lies or mollify penalties for lying or discourage trial judges from protecting our courts from those who would seek to abuse the judicial process in pursuit of lucre. Every court, at every level, should be vigilant in maintaining integrity." Ashmore , 148 So.3d at 985. Under its discretion, the Hinds County Circuit Court sought to maintain that integrity by employing one of the alternative sanctions provided for under the law. Honoring the appropriate standard of review, this Court will do the same and allow this trial judge's decision to stand.

¶ 33. The judgment of the Hinds County Circuit Court is affirmed.

¶ 34. AFFIRMED.

RANDOLPH AND KITCHENS, P.JJ., COLEMAN, CHAMBERLIN AND ISHEE, JJ., CONCUR. KING, J., CONCURS IN RESULT ONLY WITHOUT SEPARATE WRITTEN OPINION. MAXWELL, J., CONCURS IN PART AND IN RESULT WITHOUT SEPARATE WRITTEN OPINION. WALLER, C.J., NOT PARTICIPATING.

      The Court of Appeals affirmed dismissal of the plaintiff's case after finding a "clear record of repeated misrepresentations and nondisclosures in ... responses to [the defendant's] interrogatories and requests for production of documents, including the supplementation to those requests." Lockhart , 170 So.3d at 1239. The court determined that "failure to disclose similar injuries, preexisting conditions, prior treatment, and medications can be grounds for dismissal," and held that the trial court did not abuse its discretion in dismissing the matter. Lockhart , 170 So.3d at 1238.

      Several inconsistencies arose throughout the deposition. For example, through written discovery, May claimed to have only a fifth-grade education. However, in his deposition, May claimed to have continued on through the eleventh grade, after which he joined the military. Secondly, when asked if he had any criminal convictions, May initially stated he was arrested for fighting in a bar and spent a couple nights in jail as a result. Then, at his deposition, May testified he also had been arrested for a DUI in the 1970s, and had spent thirty months in jail after being convicted of a burglary. Also, when asked if May had been in any other car accidents, he testified through his interrogatories that he had not been in any. However, after receiving his medical records from his treating physicians, the defense discovered that May had been in an accident in 1999, after which he reported neck and spine pain. In addition to stating that he had no injuries or medical treatment prior to the collision with Austin, these serious misrepresentations of significant life events add to the egregiousness of May's discovery violations.

      Cross-examination by the defense was a potential sanction offered by the plaintiff as recompense for the discovery violations. However, because the plaintiff was found to have lied under oath, the defense would have the opportunity to question the plaintiff, whether by sanction or procedural provision.


source: Caselaw Access Project

author: RANDOLPH, PRESIDING JUSTICE, FOR THE COURT: KING, JUSTICE, DISSENTING:

license: Public Domain

text:
    PRESBYTERY OF ST. ANDREW, Presbyterian Church U.S.A., Inc. v. FIRST PRESBYTERIAN CHURCH PCUSA OF STARKVILLE, Mississippi
    NO. 2016-CA-01275-SCT
    Supreme Court of Mississippi.
    April 12, 2018
    ATTORNEYS FOR APPELLANT: P. SCOTT PHILLIPS, Greenville, ANDREW FRANK TOMINELLO
    ATTORNEYS FOR APPELLEE: RYAN K. FRENCH, Baton Rouge, LLOYD J. LUNCEFORD, DOLTON W. McALPIN, Starkville
    EN BANC.
   RANDOLPH, PRESIDING JUSTICE, FOR THE COURT:

¶ 1. First Presbyterian Church PCUSA of Starkville, Mississippi, ("FPC") filed its complaint for declaratory judgment, a temporary restraining order, and a preliminary injunction in the Chancery Court of Oktibbeha County requesting legal protection and injunctive relief against the Presbytery of St. Andrew Presbyterian Church U.S.A., Inc. ("Presbytery"), after the Presbytery claimed FPC's property was held in trust for the Presbyterian Church in the United States of America ("PCUSA"). The chancery court granted summary judgment in favor of FPC, finding no evidence of any trust, express or implied. We affirm the finding of the chancery court.

STATEMENT OF THE FACTS AND PROCEDURAL HISTORY

¶ 2. FPC has occupied the same piece of land in central Starkville for more than 160 years, as it was founded in 1821 as a Congregational Church and mission to the Western Frontier. FPC holds title to six parcels of real property in Starkville-the most significant being the main church facility. FPC acquired the main church property in 1837, through a deed of conveyance to the "Trustees for the Presbyterian Church in the Town of Starkville." In 1924 FPC constructed its current sanctuary on the property.

¶ 3. FPC has transitioned into and out of multiple Presbyterian denominations, including the Old School Presbyterian Church; the Presbyterian Church, Confederate States of America; and the Presbyterian Church in the United States ("PCUS"). In 1983, the PCUS merged with another Presbyterian denomination to create the Presbyterian Church in the United States of America ("PCUSA"). FPC has been affiliated with the PCUSA since its inception.

¶ 4. FPC claimed that, although it was affiliated with several different Presbyterian denominations, it existed as an "independent, unincorporated religious association from its founding until 2003." On June 22, 2003, FPC's governing board (its session) passed a resolution declaring that "it is in the best interest of this association that it be forthwith incorporated as a nonprofit corporation." The resolution was approved by the congregation, and FPC has remained an incorporated entity (First Presbyterian Church PCUSA of Starkville, Mississippi) since that date.

¶ 5. Following its incorporation, FPC conveyed to the corporation its main property and facility in Starkville. The titleholder of record was then identified as FPC's corporate entity. Any property duly transferred to the corporation remains held by and titled in the name of First Presbyterian Church, Starkville, Mississippi.

¶ 6. Prior to 1982, no official documents of the PCUS included trust language. Moreover, in 1953, PCUS adopted an official position unambiguously disclaiming any trust interest in property and confirming that the beneficial interest in the property remained with the congregation. In 1982, PCUS amended its constitution to include the word "trust." Further, a reservation provision was included with the adoption of the trust clause, which allowed a local church not to be required to seek or obtain consent or approval of any other entity to buy, sell, or mortgage the church's property as a church of the PCUS.

¶ 7. After the PCUSA was formed, the Book of Order contained a trust clause, and local churches then were required to "obtain permission before selling, mortgaging, or otherwise encumbering the property of that particular church." Because this new trust clause was a departure from prior practice, the PCUSA's constitution allowed for a "property exception" which provided as follows:

The provisions of this chapter shall apply to all congregations of the Presbyterian Church (U.S.A.). 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 Presbyterian Church in the United States [PCUS] and the United Presbyterian Church in the United States of America [UPC] to form the Presbyterian Church (U.S.A.) [PC(USA) ], shall be excused from the 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 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 Presbyterian Church (U.S.A.)[PC(USA) ]. This paragraph may not be amended.

¶ 8. In response to this "opt out" clause and a session meeting with a representative of the presbytery, FPC voted to exempt itself by passing a resolution voting to opt out of the trust clause. The resolution read that FPC

does hereby vote to be exempt from the provisions of Chapter VIII of the Book of Order to which it was not subject prior to the Reunion which established PCUSA and will hold title to its property and exercise its privileges of incorporation under the Book of Church Order, PCUS (1982-1983 edition).

(Emphasis added.) FPC maintained this same position for the next few years, as evinced by session minutes from a June 1989 meeting.

Elder James Long brought it to the attention of the Session that he had talked with David Snellgrove at Presbytery regarding the property question and determined that in 1984 we passed a resolution at a Congregational Meeting to remain under the Old Book of Church Order. In the beginning of 1990 Presbytery will publish a list of churches who opted to remain under the Old Book of Church Order. Elder Long further stated at the time of the resolution that the Transition Commission met and acted on the resolution. Elder Long has requested a copy of the minutes of this Commission which our name appears. At the present time there are three situations which could exist under the Old Book of Church Order.
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.
These are the three scenarios we are operating under. Rev. Parsons stated that he had re-submitted the request so as to cover this church in the eventuality that no action was taken earlier.

¶ 9. When incorporating in 2003, and subsequently adopting bylaws, FPC placed in those bylaws a reaffirmation of its intent to be exempt. In 2005 Session minutes, FPC reported that it had submitted the following to the chief officer of the Presbytery:

The Church By Laws were introduced and it was related that the bylaws will follow the Book of Church Order with the exception of retaining ownership of church property in the event the church dissolves. The property will not become property of the Presbytery .

(Emphasis added.)

¶ 10. The Presbytery is a council of the church and a governance level. In Presbyterian governance, the Presbytery is the central governing unit. Under the governing constitution of the PCUSA, the local presbytery is responsible for waiving or seeking enforcement of any property claims of the denomination against the local church.

¶ 11. Due to increasing disagreement with the PCUSA, FPC voted to cease monetary contributions to the Presbytery and look at the possibility of joining another Presbyterian denomination. In response to schism in the membership of FPC, the Presbytery notified FPC that it had appointed a Presbytery committee, called an Administrative Commission, to "inquire into and settle difficulties" at FPC. The Administrative Commission was authorized to fire the pastor, substitute itself for FPC's elected leadership, and take over FPC's property.

¶ 12. On March 22, 2015, FPC's session passed a resolution authorizing the filing of a legal action to determine the property rights of FPC, the Presbytery, and the PCUSA. FPC sought a declaratory judgment recognizing FPC's exclusive ownership of all property held by it or in its name, free of any trust claimed by the PCUSA. FPC also requested a temporary restraining order prohibiting the Presbytery from taking control or possession of FPC's property or from interfering with FPC's property ownership.

¶ 13. In response, the Presbytery argued that the historic polity of the Presbyterian Church holds that when a congregation is in schism, as the Presbytery contends is the case at FPC, its presbytery determines which faction receives the property, based on which faction is loyal to its denomination of membership. The Presbytery contended that the Administrative Commission's goal was to effect reconciliation of the church's members and to hold the congregation together. According to the Presbytery, the Complaint was filed by "one faction in the schism, who currently have a majority vote of the session and believe that they have a majority of membership on their side."

¶ 14. The Presbytery asserted a counterclaim for declaratory relief that FPC is subject to PCUSA's Constitution, governance, and dispute-resolution procedures, resulting in dismissal of the case or holding the case in abeyance indefinitely pending review by PCUSA. In the alternative, PCUSA asked the court to declare that the subject property was held in trust for the use and benefit of the Presbytery of St. Andrew. The Presbytery also sought injunctive relief, enjoining FPC from encumbering, selling, divesting, or otherwise transferring any property until such time as the Presbytery makes a determination of the issues related to FPC.

¶ 15. On May 11, 2015, after a hearing, the Oktibbeha County Chancery Court entered a Preliminary Injunction for all property held by FPC against the Presbytery, enjoining the Presbytery from taking any action affecting the property rights of FPC. The Presbytery also was enjoined from asserting a trust over FPC's property.

¶ 16. The parties filed competing motions for summary judgment and presented argument to the chancellor. FPC argued that the only disputed issue was whether FPC owns its property, while the Presbytery argued two issues-(1) does the Presbytery have a trust interest in FPC's property, and (2) does the First Amendment permit entry of an injunction barring PCUSA from exercising its ecclesiastical authority. After the hearing, the chancellor granted FPC's motion. The chancellor stated the issue to be determined as "who is entitled to or controls the real property occupied by FPC." Specifically, the chancellor was tasked with determining the relationship between the local church (FPC) and the parent church (PCUSA) and whether that relationship gave rise to a trust property interest in PCUSA to FPC's property. While the Presbytery argued that it considered FPC's property to be held in trust for the PCUSA, FPC argued that its past affiliation with PCUSA did not entail a trust-clause provision.

¶ 17. The chancellor determined that it was undisputed that FPC had obtained the deeds of conveyance and paid all consideration for titles to the various properties at issue. The chancellor ascertained that no trust provisions existed in any of those deeds. He also determined that no express trust agreements existed outside the deeds between the parties. The chancellor found no evidence that there was any intention to create a trust relationship. "There are no documents presented whereby resolutions were properly passed or votes were taken to establish a written express trust or of any indication whatsoever, that there was any mention of even an oral express trust." The chancellor concluded that:

there was and is no traditional express trust applicable herein in the documents of title, nor any legally enforceable and separate traditional trust instrument that would operate to vest a beneficial interest in and over the legally titled property of FPC to PCUSA.

The chancellor also found there was no constructive trust as implied by law based on the facts as agreed upon by the parties. Based on the evidence presented, the chancellor concluded that FPC clearly intended to hold title to its property.

ISSUES

¶ 18. On appeal, the Presbytery raises the following two issues:

I. Whether the chancery court erred as a matter of law in determining the Presbytery did not have a trust interest in the real and personal property of FPC.
II. Whether entry of the preliminary injunction violated its rights under the First Amendment to the United States Constitution by barring the Presbytery from exercising jurisdiction over a member congregation of its denomination and, further, from disciplining its members and ministers from violating church doctrine.

STANDARD OF REVIEW

¶ 19. This Court applies a de novo standard of review to a chancellor's grant of summary judgment. Alfonso v. Gulf Publ'g Co. , 87 So.3d 1055, 1060 (Miss. 2012). If, upon review of all pleadings, depositions, interrogatory answers, and admissions on file, there is no genuine issue of material fact, summary judgment in favor of the moving party is proper. M.R.C.P. 56(c). All evidentiary matters must be viewed in the light most favorable to the nonmoving party. Evan Johnson & Sons Constr., Inc. v. State , 877 So.2d 360, 364 (Miss. 2004).

ANALYSIS

Whether the chancery court erred as a matter of law in determining the Presbytery did not have a trust interest in the real and personal property of FPC.

¶ 20. Mississippi has adopted the "neutral principles of law" approach for resolving church property disputes. See Schmidt v. Catholic Diocese of Biloxi , 18 So.3d 814, 824 (Miss. 2009) ; Church of God Pentecostal, Inc. v. Freewill Pentecostal Church of God, Inc. , 716 So.2d 200, 206 (Miss. 1998).

The neutral-principles approach "relies on objective, traditional concepts of trust and property law...." Id. at 205. "It calls 'for the completely secular examination of deeds to the church property, state statutes and existing local and general church constitutions, by-laws, canons, Books of Discipline and the like....' " Id. (quoting Protestant Episcopal Church in Diocese of N.J. v. Graves , 83 N.J. 572, 417 A.2d 19, 23 (N.J. 1980), cert. denied sub nom. Moore v. Protestant Episcopal Church in Diocese of N.J. , 449 U.S. 1131, 101 S.Ct. 954, 67 L.Ed.2d 119 (1981) ). Religious documents must be carefully scrutinized in purely secular terms without relying on religious precepts. Church of God Pentecostal , 716 So.2d at 205-06 (citing [Jones v. ] Wolf , 443 U.S. [595,] 604, 99 S. Ct. 3020, [61 L.Ed.2d 775 (1979) ] ). If a deed, corporate charter, or religious document incorporates religious concepts in its provisions concerning ownership of the property, the court must defer to the authority of the ecclesiastical body so as to avoid resolving any religious controversy. Wolf , 443 U.S. at 604, 99 S.Ct. 3020 (citing Serbian Eastern Orthodox Diocese [v. Milivojevich ], 426 U.S. [696,] 709, 96 S.Ct. 2372, [49 L.Ed. 2d 151 (1976) ] ).

Schmidt , 18 So.3d at 824.

¶ 21. As the chancellor held, the underlying reason for the schism among FPC members and between FPC and the Presbytery is not the issue before this Court. The only issue to be decided is whether PCUSA ever had a trust interest in FPC's property. We find that the chancellor properly found that it did not.

¶ 22. FPC argues that no trust exists, whether express or implied, constructive or resulting. FPC relies on the "opt out" provision and other documents to support its position that no trust was ever created. The Presbytery argues the FPC agreed to be bound by PCUS's inclusionary trust amendment and that FPC's continued allegiance to the higher church through the adoption of the Constitution and Book of Order, and acceptance of the benefits of its affiliation supports the enforceability of the trust interest.

¶ 23. Generally, trusts are classified under two broad categories: (1) express trusts and (2) implied trusts. Mississippi law requires that "no trust of or in any real property can be created except by written instrument signed by the party who declares or creates such trust...." Miss. Code Ann. § 91-8-407 (Rev. 2013). Neither party asserted the existence of any writing signed by the proper FPC officials after authorization that satisfies Section 91-8-407, whether by original deed or separate trust instrument. Likewise, no declaration of trust is filed in the land records of Oktibbeha County, Mississippi, as provided by Section 91-8-407(b)(2).

¶ 24. No express trusts were entered into by the parties under traditional Mississippi trust law. No reference exists in any deed to creation of a trust relationship. It follows that no clear expression of an intent to create a trust exists, nor any reference even to the term "trust." Neither party has asserted the opposite. Likewise, no separate document such as a trust instrument exists in writing. Again, neither party asserts the contrary.

¶ 25. None of the elements of creation of an express trust are present, such as the writing, the clear intent of the trustor, or the confirming authority of creation of a trust and the transfer of property by the governing body. See Church of God Pentecostal , 716 So.2d at 208. Therefore, no traditional express trust nor any legally enforceable and separate traditional trust instrument exists or existed that would operate to vest a beneficial interest in and over the legally titled property of FPC to PCUSA.

¶ 26. While an express trust must be written, implied trusts differ in that they arise by implication of the law or are presumed from the circumstances. Mississippi recognizes two types of implied trusts: (1) constructive trusts and (2) resulting trusts.

¶ 27. A constructive trust is a judicially imposed remedy used to prevent unjust enrichment when one party wrongfully retains title to property. McNeil v. Hester , 753 So.2d 1057, 1064 (Miss. 2000). FPC purchased the property at issue. No evidence exists that PCUSA invested any funds into the acquisition of any of the parcels of land. No evidence of any documents, oral conversations, minutes, or other written or oral supporting evidence exists that any arrangement of trust was contemplated in the tradition of a constructive trust. No constructive trust is implied by law based on the facts as agreed upon by the parties.

¶ 28. A resulting trust "is designed to give effect to the unwritten but actual intention of the parties at the time of the acquisition of title to the affected property." Robert E. Williford, Trusts , 8 Encyclopedia of Mississippi Law § 73:2, 422 (2001). Additionally, Section 91-8-407(a)(2) specifically requires the intention to create a trust. When FPC incorporated in 2003, no intention to create a trust or create an express trust relationship existed. Furthermore, it is clear that PCUS disclaimed any interest in church trust property until just before the merger forming PCUSA. Although a trust provision was placed in the constitution when PCUSA was formed, the local churches were granted the right to opt out of that provision. FPC took measures on several different occasions to exercise its right to opt out. It did so in session meetings and bylaws of incorporation; it did so with reassurances by officers of PCUSA that compliance with the opt-out would allow FPC to hold title to its property. It is reasonable to conclude the consistent position of FPC as representative of its intent that FPC wanted to remain, as it always had, the owner of its property. There is no evidence of a resulting trust.

CONCLUSION

¶ 29. Today's case does not present a doctrinal dispute, and this Court is authorized to exercise jurisdiction under neutral principles of law. The continued affiliation of FPC with PCUSA since the merger was based on FPC's belief that it had availed itself of the eight-year-opt-out provision given it by PCUSA. FPC's provision that it "will hold title to its property" is clear evidence of its intent. We find that no express or implied trust existed between the parties.

¶ 30. AFFIRMED.

WALLER, C.J., COLEMAN, MAXWELL, BEAM, CHAMBERLIN AND ISHEE, JJ., CONCUR. KING, J., DISSENTS WITH SEPARATE WRITTEN OPINION JOINED BY KITCHENS, P.J.

KING, JUSTICE, DISSENTING:

¶ 31. The chancellor and the majority rely on an incorrect interpretation of the "opt-out" provision and of PCUS church rules to determine that PCUSA has no resulting trust interest in FPC's property. PCUSA does have a resulting trust interest in the property and, accordingly, I respectfully dissent.

¶ 32. The majority asserts that "it is clear that PCUS disclaimed any interest in church trust property until just before the merger forming PCUSA." Maj. Op. at ¶ 28. This is incorrect. As early as 1925, the PCUS Book of Church Order required that title to the property of dissolved churches must be conveyed to the Presbytery. By 1950, several local churches had included in their charters provisions that completely disclaimed any property rights of PCUS in their church property. The General Assembly considered these charters and determined that they were "contrary to and in violation of the historic practice and polity of the Presbyterian Church in the United States and, if upheld by the civil courts, would make it possible for 'such churches' to withdraw from the Presbyterian Church in the United States with their property at their own discretion." It concluded that local churches do not have absolute ownership of their property without reference to the denomination. In 1953, the General Assembly adopted a declaratory statement that, while a particular congregation enjoyed the beneficial use of its property, church property must not be used in violation of the obligation of the congregation to the PCUS. In 1965, a PCUS publication emphasized that "[t]he Church has refused to affirm that the property of a congregation belongs to that congregation absolutely and without any relation to the Church as a whole." In 1971, the General Assembly adopted a declaratory statement reaffirming its commitment to the 1953 statement, acknowledging that the civil laws of the State in which the property is situated may be applicable, but stating its belief that "[g]enerally, however, the civil courts concluded that a congregation belonging to a religious denomination and subject to the constitution, faith, and doctrines thereof, cannot use its property for a purpose which violates the relationship of the congregation to the denomination."

¶ 33. When the PCUS was working to amend the Book of Church Order in the early 1980s to add the explicit term "trust" to its property chapter, the PCUS Stated Clerk sent a letter to all pastors and clerks of session. He reaffirmed that the trust provision merely explicitly set forth the traditional position of the PCUS, and purported to "sharpen the point made in the 1971 statement." He noted that the property amendments "are not related to the work of the Joint Committee on Presbyterian Reunion-they would have been written in the same language, and introduced at this time, if there were no reunion plans under consideration." He also reassured the recipients that the Plan for Reunion had a grandfather clause "under which PCUS churches would remain subject to tranditional PCUS provisions dealing with ownership, sale, and mortgaging of property in perpetuity." (Emphasis added.) He noted that the amendments were "essential" due to the United States Supreme Court's decision in Jones v. Wolf , noting that "the action of the civil courts leaves us no choice except to amend our provisions for holding property[.]"

¶ 34. Jones v. Wolf involved a dispute between majority and minority factions of a local PCUS church. Jones v. Wolf , 443 U.S. 595, 99 S.Ct. 3020, 61 L.Ed.2d 775 (1979). The Court noted that "the provisions of the constitution of the general church, the Book of Church Order, concerning the ownership and control of property failed to reveal any language of trust in favor of the general church." Id. at 601, 99 S.Ct. 3020. "What has happened over the years since Jones v. Wolf is that many hierarchical denominations have added more explicit property provisions to their general and local church governing documents, as the Supreme Court said would be appropriate." Presbytery of Greater Atlanta, Inc. v. Timberridge Presbyterian Church, Inc. , 290 Ga. 272, 719 S.E.2d 446, 458 (2011), certiorari denied by Timberridge Presbyterian Church, Inc. v. Presbytery of Greater Atlanta, Inc. , 567 U.S. 916, 132 S.Ct. 2772, 183 L.Ed.2d 638 (2012). Thus, instead of silence on the issue in these documents, "we find provisions showing either that the general church does not control local church property, ... or, as in this case and others, provisions showing that local church property is held in trust for the general church." Id. The PCUS's 1982 amendment was clearly a reaction to what the PCUS saw as a misinterpretation of its church law by the courts; it thus added the explicit trust provision in order to protect its interests in the civil courts. FPC participated in the process to pass the amendments and was governed by them when approved in 1982, choosing not to leave the denomination.

¶ 35. The 1982 PCUS trust provision, which governs FPC's property, provides that

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 of the Presbyterian Church in the United States.

The 1982 PCUS Book of Church Order also provides that

If a particular church is dissolved by the Presbytery, attempts by either majority or unanimous vote to withdraw from the Presbyterian Church in the United States or otherwise ceases to exist or function as a member of the Presbyterian Church in the United States, any property that it may have shall be within the control of the Presbytery and may be held for designated purposes or sold or disposed of in such manner as the Presbytery, in its discretion, may direct.

The 1982 PCUS Book of Church Order states that

The relationship to the Presbyterian Church in the United States of a particular church can be severed only by constitutional action on the part of the Presbytery .... If there is a schism within the membership of a particular church and the Presbytery is unable to effect a reconciliation or a division into separate churches within the Presbyterian Church of the United States ..., the Presbytery shall determine if one of the factions is entitled to the property because it is identified by the Presbytery as the true church within the Presbyterian Church in the United States....

The 1982 PCUS Book of Church Order clarifies that

Nothing in this chapter shall be construed to require 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 mortgage the property of that particular church in the conduct of its affairs as a church of the PCUS.

¶ 36. The PCUSA Book of Order contains a similar trust provision to that contained in the 1982 PCUS Book of Church Order:

All property held by or for a congregation, a presbytery, a synod, the General Assembly, or the Presbyterian Church (U.S.A.), 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 a congregation or of a higher council or retained for the production of income, is held in trust nevertheless for the use and benefit of the Presbyterian Church (U.S.A.).

But, in contrast to the 1982 PCUS Book of Church Order, the PCUSA Book of Order further provides that

A congregation 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 permission of the presbytery transmitted through the session of the congregation.

It also states that

A congregation shall not lease its real property used for purposes of worship, or lease for more than five years any of its other real property, without the written permission of the presbytery transmitted through the session of the congregation.

¶ 37. The difference between the PCUS rules on property and the PCUSA rules on property is that congregations under the PCUS rules may exercise property rights without the approval of the denomination, while PCUSA rules forbid the congregation from buying, selling, leasing, or encumbering their property without denominational permission. Buying, selling, leasing, or encumbering the property is not at issue here. The longstanding tradition of both PCUS and PCUSA is that congregational property is held in trust for the denomination in the event of a congregational schism, dissolution, or situation in which the property is used in violation of the congregation's obligations to the denomination. PCUS was merely more hands-off about the beneficial use of property than is PCUSA, and that is what the opt-out provision accomplished: a church opting out of the property chapter did not have to obtain permission to buy, sell, or encumber property. While FPC opted out of the property provisions of the PCUSA Book of Order, "it plainly could not opt out of the property trust provision in Section G-8-0201, which mirrored the one in Section 6.3 of the PCUS Book of Church Order." Presbytery of Greater Atlanta , 719 S.E.2d at 455-56. Indeed, the opt-out provision specifically provided that in opting out of the PCUSA property provision, a church "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. That Constitution, according to FPC's own resolution to become a member of the PCUSA, was "the provisions of the Book of Church Order, Presbyterian Church in the United States (1982-1983 edition)[.]" The 1982-1983 PCUS Book of Church Order explicitly contained a trust provision in favor of the denomination. Moreover, FPC's "act of affiliating with the PCUSA ... with the trust provision already in its governing constitution demonstrated that [FPC] assented to that relinquishment of its property rights-rights it then chose not to reassert by leaving the new national church during the next eight years" as it could have opted to do. Id. at 456. The incorporation of FPC in 2003 further bolsters its assent to and membership in the PCUSA, with the application for incorporation noting that incorporation was being sought in compliance with the Constitution of the Presbyterian Church (U.S.A.).

¶ 38. Accordingly, PCUSA has a resulting trust interest in the property at issue. I would reverse the chancellor's order granting summary judgment in favor of FPC and remand the case for further proceedings.

KITCHENS, P.J., JOINS THIS OPINION.

      This argument is now moot, for FPC is no longer a member of the PCUSA.

      Before the United States Supreme Court's 1979 Jones v. Wolf opinion, "courts normally resolved property disputes in hierarchical denominations simply by deferring to the decision of the general church's ecclesiastical authorities." Presbytery of Greater Atlanta, Inc. v. Timberridge Presbyterian Church, Inc. , 290 Ga. 272, 719 S.E.2d 446, 457-58 (2011), certiorari denied by Timberridge Presbyterian Church, Inc. v. Presbytery of Greater Atlanta, Inc. , 567 U.S. 916, 132 S.Ct. 2772, 183 L.Ed.2d 638 (2012).

      FPC representatives did vote against the amendments, but after they were adopted, the church remained in the denomination, indicating its assent to be governed by the amendments despite initial disagreement.

      The Reunion Articles of Agreement provided that any PCUS congregation had the right to seek dismissal from the new denomination while retaining title to its property. This right expired eight years after reunion. FPC did not avail itself of this provision, and remained a PCUSA member.