Tubiolo v. Abundant Life Church, Inc., No. COA03-471.

Docket NºNo. COA03-471.
Citation605 S.E.2d 161, 167 NC App. 324
Case DateDecember 07, 2004
CourtCourt of Appeal of North Carolina (US)

605 S.E.2d 161
167 NC App.
324

John TUBIOLO and wife, Vickie Tubiolo, Plaintiffs,
v.
ABUNDANT LIFE CHURCH, INC., Defendant

No. COA03-471.

Court of Appeals of North Carolina.

December 7, 2004.


Harriss & Marion, P.L.L.C., by Joseph W. Marion, Durham, for plaintiff-appellees.

Crews & Klein, P.C., by Paul I. Klein and Katherine Freeman, Charlotte, for defendant-appellant.

605 S.E.2d 162
STEELMAN, Judge

Abundant Life Church, Inc. (defendant), is a corporation, organized and existing under the provisions of Chapter 55A of the North Carolina General Statutes (North Carolina Nonprofit Corporation Act). Defendant was incorporated on 8 September 1982. Both plaintiffs were founding members of the defendant. Plaintiff, John Tubiolo, was one of the incorporators and an initial director of the defendant. For a period of nearly two years prior to 5 September 2002, plaintiffs had disputes with the pastor and leadership of the church. Plaintiffs contend that the disputes arose out of the improper handling of finances by defendant. Defendant contends that plaintiffs were in "open rebellion" against the church leadership, and persistently engaged in conduct detrimental to the body of the church. On 22 August 2002, plaintiffs, through counsel, demanded copies of certain financial records of the church. By letter dated 5 September 2002, defendant's Church Council terminated plaintiffs' membership based upon scriptural discipline. The letter set forth six separate bases for the termination, and recited efforts made by the church leadership to reconcile with the plaintiffs.

Following receipt of the letter terminating their membership in defendant, plaintiffs filed this action on 8 October 2002. Their complaint sought the following relief: (1) a preliminary and permanent injunction enjoining defendant from terminating their membership; (2) a court order directing defendant

605 S.E.2d 163
to allow plaintiffs to inspect certain records of defendant; (3) a court order directing defendant to conduct an annual meeting after reasonable notice to all members

Defendant moved to dismiss plaintiffs' complaint for failure to state a claim upon which relief can be granted under Rule 12(b)(6) of the North Carolina Rules of Civil Procedure. In the alternative, defendant moved for summary judgment under Rule 56 of the Rules of Civil Procedure, and filed affidavits in support of this motion. Plaintiffs filed affidavits in opposition to the motion for summary judgment.

By order dated 3 February 2003, Judge Titus denied defendant's motion to dismiss and deferred ruling upon defendant's motion for summary judgment pending completion of discovery. The order specifically found that it "affects a substantial right of the Defendant and that there is no just reason to delay an appeal therefrom" pursuant to the provisions of Rule 54(b) of the Rules of Civil Procedure. From the entry of this order, defendant appeals.

In its first assignment of error, defendant asserts that the trial court erred in not granting its motion to dismiss. We agree, in part.

The gravamen of defendant's argument, made both before the trial court and this Court, is that the courts of this state should not become involved in matters of church membership and church discipline under the provisions of the First Amendment to the Constitution of the United States of America and section 13 of Article I of the Constitution of the State of North Carolina.

Based upon this theory, defendant's motion would have been more properly made under Rule 12(b)(1) as a motion to dismiss for lack of subject matter jurisdiction. See Emory v. Jackson Chapel First Missionary Baptist Church, ___ N.C.App. ___, 598 S.E.2d 667 (2004). "[Q]uestions of subject matter jurisdiction may properly be raised at any point, even in the Supreme Court." Forsyth County Bd. of Social Services v. Division of Social Services, 317 N.C. 689, 692, 346 S.E.2d 414, 416 (1986) (citations omitted). In Williams v. New Hanover County Bd. of Educ., 104 N.C.App. 425, 428, 409 S.E.2d 753, 755 (1991)(quoting Harrell v. Whisenant, 53 N.C.App. 615, 617, 281 S.E.2d 453, 454 (1981)), this Court held that a "motion is properly treated according to its substance rather than its label," and treated defendant's motion as one under Rule 12(b)(1) rather than Rule 12(b)(6). In the instant case, we treat defendant's motion to dismiss as one made under Rule 12(b)(1) to dismiss for lack of subject matter jurisdiction.

The appropriate standard of review in this case is de novo. Emory, ___ N.C.App. at ___, 598 S.E.2d at 669. In considering a motion to dismiss for lack of subject matter jurisdiction, it is appropriate for the court to consider and weigh matters outside of the pleadings. Tart v. Walker, 38 N.C.App. 500, 502, 248 S.E.2d 736, 737 (1978).

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27 practice notes
  • King v. Tatum (Ex parte Tatum), 1131368.
    • United States
    • Supreme Court of Alabama
    • July 10, 2015
    ...First Congregational Church of Haverhill, 441 Mass. 699, 808 N.E.2d 301 (2004) ; Tubiolo v. Abundant Life Church, Inc., 167 N.C.App. 324, 605 S.E.2d 161 (2004)."4 See also Bryce v. Episcopal Church in the Diocese of Colorado, 289 F.3d 648, 655 (10th Cir.2002) ("Courts have held that churche......
  • Stec v. Fuzion Investment Capital, LLC, 11 CVS 4241
    • United States
    • North Carolina Superior Courts of Law and Equity of North Carolina
    • April 30, 2012
    ...for the court to consider and weigh matters outside of the pleadings.'" Tubiolo v. Abundant Life Church, Inc., 167 N.C.App. 324, 327, 605 S.E.2d 161, 163 (2004) (quoting Tart v. Walker, 38 N.C.App. 500, 502, 248 S.E.2d 736, 737 1. CAUSES OF ACTION {17} A bankruptcy estate is created at the ......
  • Lippard v. Holleman, No. COA18-873
    • United States
    • North Carolina Court of Appeal of North Carolina (US)
    • May 19, 2020
    ...as an ecclesiastical matter and property rights in subsequent cases. In Tubiolo v. Abundant Life Church, Inc. , 167 N.C. App. 324, 605 S.E.2d 161 (2004), we held that "membership in a church is a core ecclesiastical matter[,]" and "[i]t is an area where the courts of this State should not b......
  • Harris v. Matthews, No. 479PA05-2.
    • United States
    • North Carolina United States State Supreme Court of North Carolina
    • May 4, 2007
    ...this case to the Court of Appeals for more thorough consideration in light of Tubiolo v. Abundant Life Church, Inc., 167 N.C.App. 324, 605 S.E.2d 161 (2004), disc. rev. denied, 359 N.C. 326, 611 S.E.2d 853, cert. denied, [546] U.S. [819], 126 S.Ct. 350, 163 L.Ed.2d 59 (2005)." Harris v. Mat......
  • Request a trial to view additional results
27 cases
  • King v. Tatum (Ex parte Tatum), 1131368.
    • United States
    • Supreme Court of Alabama
    • July 10, 2015
    ...First Congregational Church of Haverhill, 441 Mass. 699, 808 N.E.2d 301 (2004) ; Tubiolo v. Abundant Life Church, Inc., 167 N.C.App. 324, 605 S.E.2d 161 (2004)."4 See also Bryce v. Episcopal Church in the Diocese of Colorado, 289 F.3d 648, 655 (10th Cir.2002) ("Courts have held that churche......
  • Stec v. Fuzion Investment Capital, LLC, 11 CVS 4241
    • United States
    • North Carolina Superior Courts of Law and Equity of North Carolina
    • April 30, 2012
    ...for the court to consider and weigh matters outside of the pleadings.'" Tubiolo v. Abundant Life Church, Inc., 167 N.C.App. 324, 327, 605 S.E.2d 161, 163 (2004) (quoting Tart v. Walker, 38 N.C.App. 500, 502, 248 S.E.2d 736, 737 1. CAUSES OF ACTION {17} A bankruptcy estate is created at the ......
  • Lippard v. Holleman, No. COA18-873
    • United States
    • North Carolina Court of Appeal of North Carolina (US)
    • May 19, 2020
    ...as an ecclesiastical matter and property rights in subsequent cases. In Tubiolo v. Abundant Life Church, Inc. , 167 N.C. App. 324, 605 S.E.2d 161 (2004), we held that "membership in a church is a core ecclesiastical matter[,]" and "[i]t is an area where the courts of this State should not b......
  • Harris v. Matthews, No. 479PA05-2.
    • United States
    • North Carolina United States State Supreme Court of North Carolina
    • May 4, 2007
    ...this case to the Court of Appeals for more thorough consideration in light of Tubiolo v. Abundant Life Church, Inc., 167 N.C.App. 324, 605 S.E.2d 161 (2004), disc. rev. denied, 359 N.C. 326, 611 S.E.2d 853, cert. denied, [546] U.S. [819], 126 S.Ct. 350, 163 L.Ed.2d 59 (2005)." Harris v. Mat......
  • Request a trial to view additional results

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