Mullins v. Wicker

• Decision Date: 22 June 2017
• Docket Number: Case No. 16CA872
• Parties: BROTHER ALGER MULLINS, et al., Plaintiffs-Appellees, v. JIM WICKER, et al., Defendants-Appellants.
• Court: Ohio Court of Appeals

2017 Ohio 5663

BROTHER ALGER MULLINS, et al., Plaintiffs-Appellees, v. JIM WICKER, et al., Defendants-Appellants.

Case No. 16CA872

COURT OF APPEALS OF OHIO FOURTH APPELLATE DISTRICT PIKE COUNTY

June 22, 2017

DECISION AND JUDGMENT ENTRY

APPEARANCES:

Thomas M. Spetnagel, Law Offices of Thomas M. Spetnagel, Chillicothe, Ohio, for Appellants.

William S. Cole, Cole, Kirby, & Associates, LLC, Jackson, Ohio, for Appellees.

McFarland, J.

{¶1} This is an appeal of the July 5, 2016 judgment entry of the Pike County Court of Common Pleas. Appellants, various members of the Little Ettie Old Regular Baptist Church located in Pike County, Ohio, assert the trial court erred by: (1) finding there to be two congregations, equally entitled to church property; and (2) ordering a permanent injunction in favor of each party against the other. Having reviewed the applicable Ohio law and the record herein, we find competent, credible evidence supports the trial court's decision that there are two congregations. We further find the trial court did not abuse its discretion in ordering a permanent injunction be imposed. Accordingly, we overrule Appellants' assignments of error and affirm the judgment of the trial court.

FACTUAL AND PROCEDURAL BACKGROUND

{¶2} This lawsuit arises from a dispute between two factions competing to control real and personal property belonging to the Little Ettie Old Regular Baptist Church, ("The Church"), of Beaver, Ohio. The Church was founded in 1946 as an unincorporated voluntary association.¹ The Church began as one of 52 churches in the New Salem Association. New Salem Association is one of seven Old Regular Baptist Church Associations.²

{¶3} The Church acquired its real property in 1965 and later acquired a cemetery. The real estate, personal property, and church funds are held in trust. The Church building was constructed in 1972. The membership began worship services in the church building in 1973. Male members are referenced as "brothers" and female members are referenced as "sisters."

{¶4} Both parties agree The Church "holds its own key," which means the members maintain complete autonomy over decisions of The Church. The Church does not have a constitution, by-laws, or a written governing document. It is a self-governing congregational organization. The Church is governed by itsmembers through its history and minutes. A clerk keeps the minutes of every business meeting.

{¶5} The membership has four officers: moderator, assistant moderator, clerk and assistant clerk. Moderators are ordained ministers and are the only members who can preach. The membership convenes in the church building for a business meeting on the second Saturday of each month.³ The membership conducts worship services in the church building on the second Sunday of each month. At the business meetings, if a member makes a motion and another member does not object, then the motion passes without the necessity of members voting. However, if a member objects to the motion then the members vote and the majority prevails. Moderators do not vote unless the vote is needed to break a tie.⁴ Church officers are elected each December.

{¶6} Trustees are either elected by the membership or appointed by the moderator to hold title to the real estate and to maintain the real estate. The trustees also control The Church's personal property and funds. However, the trustees' control is only with the consent of the membership.

{¶7} On February 6, 2012, church trustees Brother Alger Mullins, Brother Paul Mathews, and Brother Allan Osborne (Appellees), filed suit againstAppellants, other members of the Church.⁵ Appellees made the following general allegations:

1. That the defendants held a meeting on January 25, 2012 and attempted to expel members from The Church;

2. That the trustees and other members were not provided notice;

3. That the Appellants had removed personal property belonging to The Church from the premises;

4. That Appellants were inquiring of the procedures to transfer church real estate; and,

5. That Appellants had attempted to empty The Church's treasury.

Appellees requested a temporary restraining order be issued to prevent Appellants from entering upon church property or disposing of it. On February 22, 2012, the trial court denied the ex parte request for a temporary restraining order.⁶ On February 23, 2012, Appellants filed an answer to the complaint along with a counterclaim.

{¶8} Appellants brought their counterclaim, pursuant to R.C. 2721.02, and requested a declaration of the legal rights, duties, obligations, and relationships of the parties. In the counterclaim, Appellants stated that they were the "true and lawful members" of The Church, that Appellees had previously been expelled fromThe Church, and that Appellees were now trespassers on the property. Appellants alleged that Appellees were not adhering to long-standing beliefs of The Church, attempting to "pervert" church doctrine, and to take control of The Church. Appellants also requested a temporary and permanent injunction, as well as a judgment against Appellees for the wrongful taking of church funds. Appellees filed a reply to the counterclaim and the parties engaged in written discovery.

{¶9} On May 11, 2012, Appellants filed a motion requesting the court for an order allowing them to worship in the church building one weekend a month during the pendency of the action. The trial court set the matter for hearing which took place on June 25, 2012. On July 13, 2012, the court journalized its entry and order, effective during the pendency of the action, as follows:

1. Appellees had the sole right to access, occupancy and use of church buildings on the even-numbered weekends during the even numbered months.

2. Appellants had the sole right to access, occupancy and use of church buildings on the odd-numbered weekends during the even-numbered months.

3. Appellants had the sole right to access, occupancy, and use of church buildings on the even-numbered weekends during the odd-numbered months.

4. Appellees had the sole right to access, occupancy, and use of church buildings on the odd-numbered weekends on the odd-numbered months.

The parties were further ordered to secure the buildings, furnish keys and access, share tools and equipment for maintenance of The Church, share maintenance responsibilities, and share incidental expenses for the operation of church property.

{¶10} After depositions were obtained, Appellants filed a motion for summary judgment. Appellants argued that the court need not decide underlying issues between the parties; it simply needed to determine which faction in the church acted under the proper authority in conducting The Church's affairs. The testimony adduced in deposition and at trial demonstrated that in the months leading to the filing of the lawsuit, the factions disagreed as to: (1) the extent of women's voting rights on church matters; and (2) as to The Church's continued participation in the New Salem Association. Appellants concluded that reasonable minds could only conclude that Appellees represented a minority faction of The Church, were not valid representatives of The Church, and did not have the right to control The Church and its property.

{¶11} Appellees filed a memorandum in opposition to the motion for summary judgment.⁷ Appellees argued there were genuine issues of material fact as to the historical tradition of The Church and its governance. One of the key disputed facts, Appellees cited, was the appropriateness of a secret, unnoticed, non-traditional, and exclusionary meeting conducted by Appellants.

{¶12} On May 27, 2014, the trial court granted the motion for summary judgment in part and denied it in part.⁸ On September 11, 2014, the case was referred to mediation. On January 12, 2015, Appellees filed a motion for an order of contempt, asserting that Appellants had failed with the trial court's temporary order that the parties share incidental expenses in connection with the operation of The Church.⁹ On February 23, 2015, Appellants filed a motion for contempt, alleging that the Appellees failed to pay one-half (1/2) of the cost of insurance and asked the court to order Appellees to reimburse Appellants for one-half (1/2) of the monies taken from The Church checking account.

{¶13} On June 8, 2015, Appellants also filed a motion to supplement the counterclaim. On June 16, 2015, the trial court granted the motion. On that same date, Appellants filed their counterclaim, alleging that Appellees wrongfully took church funds.

{¶14} On September 8, 2015, Appellants filed a motion to join The Church as a party defendant and counterclaimant. Although Appellees filed a memorandum contra, the trial court subsequently granted the motion to join. On March 16, 2016, the trial court journalized an order setting forth its findings on the motions for contempt. The court ordered that the motions for contempt filed byboth parties be dismissed.¹⁰ On March 16, 2016, the trial court also journalized a partial judgment entry which ordered as follows:

1. That within 30 days, either party could file a partition action, regarding The Church, excluding the cemetery;

2. That within 30 days, either party could file a motion to publicly sell the personal property of The Church;

3. That Plaintiff Paul Mathews must file an accounting regarding money which he withdrew from The Church's account, with the court and with Appellant Ernest Mathews, within 20 days;

4. That the July 12, 2012 journal entry and order be converted to a permanent injunction and incorporated herein as if fully rewritten¹¹; and,

5. That the case was to remain pending until further order of the Court.¹²

{¶15} On April 15, 2016, counsel for Appellees filed a report of accounting regarding the proceeds of the closed Church checking account. On June 9, 2016, the trial court journalized an entry scheduling non-oral hearings on the two March 16, 2016 entries (contempt motions and partial judgment entry)....