FIRST BORN CHURCH v. Bank of America, A00A1795.

• Decision Date: 14 February 2001
• Docket Number: No. A00A1795.,A00A1795.
• Citation: 248 Ga. App. 500,546 S.E.2d 1
• Parties: FIRST BORN CHURCH OF THE LIVING GOD, INC. et al., v. BANK OF AMERICA, N.A. et al.
• Court: Georgia Court of Appeals

546 S.E.2d 1

248 Ga. App. 500

FIRST BORN CHURCH OF THE LIVING GOD, INC. et al., v. BANK OF AMERICA, N.A. et al.

No. A00A1795.

Court of Appeals of Georgia.

February 14, 2001.

Reconsideration Denied March 8, 2001.

Hunter, Maclean, Exley & Dunn, Kirby G. Mason, Savannah, John M. Hatfield, Walter D. Adams, Brunswick, for appellants.

Gibson & Spivey, D. Lamar Gibson, Waycross, for appellees.

POPE, Presiding Judge.

This case involves a heated contest that began in 1994 for control of the First Born Church of the Living God, Inc.¹ The contestants are the Executive Board of the church on one side, and Senior Bishop Albert Hill and his alleged successor Bishop Leonard Goode on the other.² Essentially, the Board contends that according to the church constitution it holds the supreme authority of the church and that it used that authority to remove Hill. Hill, and, now, Goode contend that even if the Board has the supreme authority, it failed to follow the procedural requirements of the constitution when it removed Hill.

This is the second appearance of this case in this Court. The litigation began as an interpleader action filed by Bank South, N.A. (now known as Bank of America, N.A.) in the Superior Court of Ware County to determine who at the church had authority over the church's accounts at the bank. The bank was responding to the fact that in November 1994, at an emergency meeting, the Executive Board of the church voted to remove Senior Bishop Hill, to designate Bishop W.L. Johnson as the new senior bishop, and to remove Hill as a signatory on the church bank accounts. The Board then instructed the bank not to honor checks signed by Hill. After receiving a check signed by Hill, the bank filed the interpleader action. The trial court held a hearing (apparently a bench trial), upheld the Board's decision removing Hill, and ordered the bank to comply with the direction of the Board. The trial court stated that its order "shall be a final order in this case."

In First Born Church of the Living God v. Bank South, N. A., 221 Ga.App. 739, 472 S.E.2d 469 (1996) ("First Born I"), this Court reversed. This Court held that the dispute concerned control of church property and whether the Board complied with the provisions of its written constitution. Therefore the issue was secular and not ecclesiastical in nature. And, because the Board had failed to follow the procedural requirements of the church constitution when it changed the administration of the church's accounts with the bank and when it removed Senior Bishop Hill, those actions were invalid. This Court concluded: "Therefore, the actions at issue here, taken in violation of the express legislative procedures required by the Church's constitution were not validly enacted." Id. at 741-742, 472 S.E.2d 469. On November 6, 1996, the trial court "ordered that the judgment of the Court of Appeals be and is hereby made the Judgment of this Court."

However, the trial court did not enter a final judgment. Instead, it apparently retained jurisdiction of the case and eventually had a second bench trial held on September 8 and November 18, 1999, reconsidering whether Hill had been properly removed by the Board in 1994 or later expelled and excommunicated in either 1995 or in 1997/1998. Neither party had amended the pleadings. Rather, it would appear that the Board simply desired another hearing, over four years after the initial hearing, in an attempt to get the court to ratify at least one of the Board's two subsequent attempts to oust Senior Bishop Hill. Indeed, at the bench trial, the court asked the Board, "Your intention is to submit evidence as to what has taken place since the Court of Appeals sent its decision down and then ask for another order of the Court ... either for or against?" Counsel for the Board replied, "That's correct with the exception that some of the events that would be in the evidence occurred while the case was pending on appeal." After a bench trial, the court again held in favor of the Board, and that decision is the one now on appeal.

The trial court first held that the law of the case established in First Born I was not controlling. The court then held (1) that contrary to First Born I, this case involves not a church property dispute, but a religious dispute, the resolution of which is for ecclesiastical and not civil tribunals; (2) that the Executive Board is the highest tribunal of the church and therefore the trial court must defer to its decisions; (3) that the Board itself concluded that it had complied with the constitution when it terminated Hill in 1994; (4) that therefore, contrary to this Court's holding in First Born I, Hill was properly removed in 1994; (5) that the Board also removed Hill in accordance with the constitution in 1997/1998; (6) that Bishop Goode was never properly appointed to be the assistant senior bishop and therefore could not succeed Senior Bishop Hill; and (7) that, accordingly, the bank is authorized to release the bank accounts in accordance with the direction of the Board.

Goode's first enumeration of error is that no justiciable issue was ripe for consideration in the court below. We agree.

First, the decision in First Born I and entry of the remittitur as the judgment of the trial court effectively ended the case based on the pleadings submitted by the parties. There was nothing left to resolve, and it was error for the court to retain jurisdiction to consider the propriety of the Board's successive attempts to remove Senior Bishop Hill. Goode raised this point at the beginning of the bench trial and objected to proceeding without amended pleadings or a pretrial order.

Neither the bank nor the Board amended the pleadings to assert any other claim. There are no allegations that Hill attempted to write any other checks in the name of the church. Indeed, Bishops Hill, Stevenson and Johnson were the only three bishops on the signature card in 1994 when the initial case was filed, and Hill and Stevenson are now dead. There is no evidence that Goode was ever added to the signature card at the bank. There is no allegation or evidence that Goode attempted to write any checks in the name of the church.

The decision in Summer-Minter & Assoc. v. Giordano, 231 Ga. 601, 203 S.E.2d 173 (1974) ("Giordano II"), is instructive. In that case, the trial court had denied the defendants' motion for summary judgment on the plaintiffs' claims but certified the decision for review on appeal. In the case's first appearance before the Supreme Court, the Supreme Court reversed that decision and held that the trial court erred in denying the defendants' motion. Summer-Minter & Assoc. v. Giordano, 228 Ga. 86, 184 S.E.2d 152 (1971) ("Giordano I"). But before the remittitur became the judgment of the trial court, the plaintiffs amended their complaint alleging basically the same facts but adding an additional allegation of wrongdoing by one of the defendants. Giordano II, 231 Ga. at 602, 203 S.E.2d 173. The defendants objected to the amendment. Id. at 603, 203 S.E.2d 173.

In Giordano II, the Supreme Court held that its earlier decision disposed of the litigation and that the plaintiffs were not authorized to amend their pleadings. Id. at 605-606, 203 S.E.2d 173. Although the Court's reasoning largely focused on the policy of finality underlying the summary judgment procedure, it made clear that where there has been an adjudication on the merits of the case, the plaintiff is not free to amend its pleadings:

once the issues are narrowed for trial, the complaint stands only upon those facts adduced at trial by the plaintiff, and once a verdict is returned or a motion for directed verdict is sustained, it is too late to amend even pending remittitur.

(Citations omitted.) Id. at 605, 203 S.E.2d 173.³ Nor can the court hear additional evidence that would otherwise affect the finality of the judgment. Shepherd v. Shepherd, 243 Ga. 253, 254-255, 253 S.E.2d 696 (1979); Smith v. Allen, 131 Ga.App. 518, 519(1), 206 S.E.2d 540 (1974).

The reasoning of Giordano II applies here because a party against whom a verdict has been entered is in the same position as a party against whom summary judgment has been granted. See Giordano II, 231 Ga. at 604, 203 S.E.2d 173. And, the situation here is even more compelling.

The parties had a bench trial in 1995 on the issues raised in the pleadings. It was a complete adjudication on the merits. The trial judge entered a final order, we reversed and held that Bishop Hill had not been properly terminated in 1994, and the trial court entered the remittitur as the judgment of the court. At that point, the court should have entered final judgment, thereby freeing the bank to honor the checks written by Hill. Instead, no one even attempted to amend the pleadings of the case. The case simply sat dormant until the Board sought to have its subsequent attempts to remove Bishop Hill ratified by the court. At the second bench trial, most of the facts raised had not even occurred when the remittitur was entered. And they involve numerous events in the history of the church from September 1995 through almost the date of the trial in September 1999.

Moreover, there is no evidence in the record that after the first bench trial, the bank was faced with a choice of whether to honor checks signed by Bishop Hill. Although the bank apparently acquiesced in allowing the case to continue, the case took on a decidedly different appearance after the first trip to the Court of Appeals. The dispute over the church property, i.e., checks written on the church account by then Senior Bishop Hill, was, according to the pleadings and not contradicted by the evidence presented at the second trial, completely resolved.⁴ The remaining dispute is simply one concerning which of two factions of the church is rightfully in control.

We see no reason to exempt respondents in an interpleader action from...