Saint John's Church in Wilderness v. Scott
| Decision Date | 21 August 2008 |
| Docket Number | No. 06CA2421.,06CA2421. |
| Citation | 194 P.3d 475 |
| Parties | SAINT JOHN'S CHURCH IN the WILDERNESS, a Colorado nonprofit corporation; Charles I. Thompson; and Charles W. Berberich, Plaintiffs-Appellees, v. Kenneth Tyler SCOTT and Clifton Powell, Defendants-Appellants. |
| Court | Colorado Court of Appeals |
Faegre & Benson LLP, Russell O. Stewart, Denver, Colorado; Holme Roberts & Owen LLP, David R. Ball, Denver, Colorado, for Plaintiffs-Appellees.
Kenneth Tyler Scott, Pro Se.
Clifton Powell, Pro Se.
James P. Rouse, Greenwood Village, Colorado; Catherine W. Short, Ojai, California, for Amicus Curiae Life Legal Defense Foundation.
Opinion by Judge CARPARELLI.
This case arises from a demonstration at a church and implicates issues of free speech and the ability of church members to worship. Defendants, Kenneth Tyler Scott and Clifton Powell, appeal the judgments entered and the injunction issued in favor of plaintiffs, St. John's Church in the Wilderness (the Church), and Charles I. Thompson and Charles W. Berberich (the named parishioners) (collectively St. John's). We affirm the judgments, affirm the injunction in part and vacate it in part, and remand for further findings.
Scott and Powell led a demonstration at the Church. The Church and the named parishioners sued claiming Scott and Powell had created a private nuisance and had conspired to do so. The Church sought and obtained a permanent injunction against future demonstrations. Thus, this dispute requires the protection of the demonstrators' First Amendment rights to free speech as well as St. John's ability to worship.
On March 20, 2005, which was Palm Sunday, the Church held four religious services. Two of them included a liturgy on the lawn east of the Church, followed by a procession into the Church's north entrance. The Church had acquired a parade permit that restricted use of the sidewalk to accommodate the processions.
Scott and Powell preach and demonstrate against abortion and homosexuality. Together with five or six others, they demonstrated near the Church during the Palm Sunday services. The demonstrators stood in the street, across the street, and on their parked cars. As the parishioners arrived, and during the outdoor liturgies and processionals, at least one of the demonstrators shouted in a manner described as distracting, unpleasant, and unsettling. The demonstrators also displayed signs, some of which included graphic depictions of aborted fetuses.
After the Church sued and conducted discovery, it moved for summary judgment against Scott and Powell. The trial court granted the motion only as to the private nuisance claim against Scott. After a bench trial, as pertinent here, the court entered a final judgment in favor of the Church and against Powell on the private nuisance claim and against Scott and Powell on the conspiracy to commit private nuisance claims. The court also issued a permanent injunction against Scott and Powell prohibiting them from entering the Church's premises, obstructing access to the Church, and entering and obstructing access through surrogates; and restricting their picketing activities and noise-making.
Scott contends that summary judgment should not have been granted against him on the private nuisance claim. We conclude that any error was harmless. We reject Powell's contention that the trial court erred when, at the conclusion of the trial, it found that his conduct created a private nuisance, and we reject Scott's and Powell's contentions that the court erred when it found that the two had engaged in a conspiracy to create a private nuisance.
To prove a private nuisance claim, a plaintiff must establish that (1) the defendant's conduct unreasonably interfered with the use and enjoyment of the plaintiff's property, (2) the interference was so substantial that it would have been offensive or caused inconvenience or annoyance to a reasonable person in the community, and (3) the interference was either negligent or intentional. Public Service Co. v. Van Wyk, 27 P.3d 377, 391 (Colo.2001).
We will not set aside the trial court's findings of fact unless they are clearly erroneous. C.R.C.P. 52.
Summary judgment is proper when there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. C.R.C.P. 56(c). We review a trial court's grant of summary judgment de novo. Aspen Wilderness Workshop, Inc. v. Colorado Water Conservation Bd., 901 P.2d 1251, 1256 (Colo.1995).
The Church's summary judgment motion relied on evidence that Scott's voice was unusually loud and substantially interfered with the services. In his response, Scott argued that he did not interfere with worship at the Church. He relied on the deposition of a police officer who witnessed the demonstrations and stated that the demonstrators were peaceful, were not shouting, and that he did not believe that they interfered with anyone's ability to worship. Notwithstanding the officer's deposition testimony, the court granted summary judgment against Scott as to the private nuisance claim.
The private nuisance claim against Powell and the conspiracy claims against both Scott and Powell were tried. Thus, the facts and circumstances related to Scott's and Powell's actions at the Church were presented to the court through the testimony of witnesses, including two police officers. At the conclusion of the trial, the court found (1) the testimony of the priest and the named parishioners was more persuasive than that of the police officers with regard to Scott's and Powell's impact on the parishioners; (2) Scott's voice was so loud during the time that the processions were gathered on the east lawn and during the procession that it substantially interfered with the service; and (3) Scott and Powell caused people attending the services to be visibly upset, and one of the named parishioners was so distracted and upset, and Scott's voice was so loud, that he could not sing the hymns during the procession.
We conclude that, even assuming there was a genuine issue of material fact before trial regarding whether Scott's actions and voice substantially interfered with the service, there was a trial of the same facts, the court made findings regarding those facts, the record supports those findings, and the court's findings fully support the judgment against Scott as to the claim of private nuisance. Therefore, any error in granting summary judgment was rendered harmless. See C.R.C.P. 61; Fairways Living, Inc. v. North Denver Bank, 169 Colo. 23, 26, 453 P.2d 190, 191 (1969) ().
After the trial, the court made extensive findings of fact about Scott's and Powell's conduct, its reasonableness, and its effect on the parishioners. The court found that:
• The Church owned the property in question;
• The property was used for worship;
• Powell interfered with worship at the Church;
• A reasonable person would find Powell's conduct offensive and annoying; and
• Powell's conduct was intentional or knowing.
On that basis, the court found for the Church on the private nuisance claim against Powell.
The court also found that:
• Scott and Powell belonged to a relatively small group that had actively participated in street preaching and demonstrations on hundreds of previous occasions during the last five to ten years;
• One or two weeks before the Palm Sunday protest, Scott and Powell made plans to protest at the Church;
• Scott's wife publicized the demonstration when she appeared on a television program and said that they were going to demonstrate at the Church on Palm Sunday while parishioners had their children with them;
• Scott and Powell met with other members of their group on the morning of Palm Sunday to prepare; and
• Scott supplied Powell and others with signs and posters.
On the basis of these findings, the court concluded that both Scott and Powell engaged in a civil conspiracy to commit a private nuisance.
We conclude that there is evidence in the record to support the court's findings and conclusions that Powell created a private nuisance and that both Scott and Powell engaged in a civil conspiracy to create a private nuisance. Accordingly, we affirm the judgment regarding the private nuisance claim against Powell and the conspiracy claims against both Powell and Scott.
Scott and Powell contend that the injunction is unconstitutional because it places impermissible content-based restrictions on their First Amendment rights to freedom of speech. We affirm the injunction order in part, vacate it in part, and remand for additional findings.
We first determine that the threshold requirements for imposing injunctive relief were met, and, therefore, that it was proper for the court to issue an injunction.
"The grant or denial of injunctive relief lies within the sound discretion of the trial court and will be reversed only upon a showing of an abuse of that discretion." Langlois v. Board of County Comm'rs, 78 P.3d 1154, 1157 (Colo.App.2003).
"A party seeking a permanent injunction must show that: (1) the party has achieved actual success on the merits; (2) irreparable harm will result unless the injunction is issued; (3) the threatened injury outweighs the harm that the injunction may cause to the opposing party; and (4) the injunction, if issued, will not adversely affect the public interest." Langlois, 78 P.3d at 1158.
Success on the Merits. In the trial court, the Church was successful as to all claims against Scott and Powell and we affirm the judgments.
Irreparable Harm. The trial court found that, unless the demonstrators were enjoined, they would engage in...
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