Professional Documents
Culture Documents
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UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF TEXAS DALLAS DIVISION HIGHLAND PARK PRESBYTERIAN CHURCH INC., Plaintiff, v. GRACE PRESBYTERY, INC., Defendant. CIVIL ACTION NO. 3:13-cv-3813
NOTICE OF REMOVAL Defendant Grace Presbytery, Inc. (Grace Presbytery) hereby files this Notice of Removal to the United States District Court for the Northern District of Texas, Dallas Division. Plaintiff alleges that it is entitled to relief as a result of Grace Presbyterys alleged violations of free speech rights guaranteed by the First and Fourteenth Amendments to the United States Constitution, the religion clauses of the First Amendment to the United States Constitution, [and] the due process guarantees of the Fourteenth Amendment to the United States Constitution. (Pet. at 64.). Plaintiffs claims pose federal questions and removal of this action is proper. See 28 U.S.C. 1331, 1441(a). INTRODUCTION Plaintiff Highland Park Presbyterian Church Inc. (Plaintiff) filed its Original Petition and Application for Injunctive Relief (Petition) on September 10, 2013 in the 298th Judicial District Court of Dallas County, where the lawsuit was assigned Cause No. DC-13-10605. The same day, Plaintiff faxed Grace Presbytery a copy of the Petition.
NOTICE OF REMOVAL
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Plaintiff is a local congregation within the Presbyterian Church (USA) denomination (the PCUSA or denomination). (Pet. at 8.) Grace Presbytery is a district administrative unit (presbytery) of the PCUSA. (Pet. at 7.) In this action, Plaintiff seeks declaratory and injunctive relief on issues of internal church governance concerning Grace Presbyterys rights in church property. (Pet. at 55; 62-63.) Plaintiff asserts that it is entitled to such relief under the United States Constitution. (See, e.g., Pet. at 45, 64.) Plaintiff thus seek[s] recovery directly under the Constitution of the United States, and the federal questions appear on the face of their request. Bell v. Hood, 327 U.S. 678, 681 (1946). Accordingly, the federal courts must entertain the suit. Id. THE REQUIREMENTS FOR REMOVAL ARE SATISFIED A. Plaintiffs Petition states a federal question. When a civil action is originally filed in state court, removal to federal court is proper if the action could have initially been brought in federal court. 28 U.S.C. 1441(a). The district courts shall have original jurisdiction of all civil actions arising under the Constitution . . . of the United States. 28 U.S.C. 1331. Plaintiffs claims in this action arise under the Constitution of the United States. Removal is therefore proper. Before deciding that there is no jurisdiction, the District Court must look to the way the complaint is drawn to see if it is drawn so as to claim a right to recover under the Constitution and laws of the United States. Bell, 327 U.S. at 681. In its verified Petition, Plaintiff asserts that it is entitled to relief to halt Grace Presbyterys alleged violations of free speech rights guaranteed by the First and Fourteenth Amendments to the United States Constitution, the religion clauses of the First Amendment to the United States Constitution, [and] the due process guarantees of the Fourteenth Amendment to the United States Constitution. (Pet. at 64.). Plaintiff further argues that it is entitled to a declaratory judgment because allowing Grace
NOTICE OF REMOVAL Page 2
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Presbytery to exercise its rights would constitute unlawful church establishment that is . . . prohibited by the First Amendment to the United States Constitution. (Pet. at 45.) These paragraphs allege a right to relief arising under the United States Constitution. See Ortiz-Bonilla v. Federacion de Ajedrez de Puerto Rico, Inc., 2013 WL 4457427, *6 (1st Cir. Aug. 21, 2013) (finding federal question jurisdiction where chess players sought to enjoin a chess federation from actions that allegedly violated the players rights under the United States Constitution). [W]here the complaint, as here, is so drawn as to seek recovery directly under the Constitution or laws of the United States, the federal court . . . must entertain the suit. Bell, 327 U.S. at 681; see also Ortiz-Bonilla, 2013 WL 4457427 at *6. This action is thus removable without regard to the citizenship or residence of the parties. See 28 U.S.C. 1441(b).1 B. This Notice of Removal is procedurally correct. Grace Presbytery has satisfied all applicable procedural requirements relating to this Notice of Removal. This case was filed in state court on September 10, 2013. Plaintiff faxed Grace Presbytery a copy of the Petition the same day. Thus, this Notice of Removal is filed within thirty days of Grace Presbyterys receipt of the Petition and therefore is timely pursuant to 28 U.S.C. 1446(b). In addition, all other removal requirements have been satisfied. Grace Presbytery has complied with Local Rule 81.1 regarding the required form of documents to be filed for removal: Attached hereto as Exhibit A is an index of documents filed in the state court that clearly identifies each document and indicates the date the document was filed in state court;
Here, both of Plaintiffs claims allege a right to relief arising under the United States Constitution. Even if they did not, however, a federal court that exercises federal question jurisdiction over a single claim may also assert supplemental jurisdiction over all state-law claims that arise from the same nucleus of operative facts. See 28 U.S.C. 1367(a).
NOTICE OF REMOVAL
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Attached hereto as Exhibit B is a copy of the docket sheet for the state court action; and Attached hereto as Exhibits C - O are true and correct copies of each document filed in the state court action arranged in chronological order.
Immediately after filing this Notice of Removal, Grace Presbytery will file a Notice of Filing Notice of Removal to Federal Court with the 298th Judicial District Court of Dallas County, Texas, a true and correct copy of which is attached hereto as Exhibit P. Additionally, in compliance with the Local Rules, Grace Presbytery has attached to this Notice of Removal as Exhibits Q, R, and S, respectively: (1) a Northern District Civil Action Cover Sheet, (2) a Supplemental Civil Cover Sheet for Cases Removed from State Court, and (3) a separately signed certificate of interested persons that complies with Local Rule 3.1(f). Grace Presbytery has also paid the filing fee for the removed action. C. The venue requirement is met. Venue is proper in this Court because this is the United States District Court for the district and division corresponding to the place where the state court action was pending. CONCLUSION By this notice, Grace Presbytery does not waive any defenses or objections that it may have and Grace Presbytery intends no admission of fact, law, or liability by this notice, and reserves all defenses, motions, and pleas. Grace Presbytery prays that this action be removed to this Court for determination, that all further proceedings in the state court suit be stayed, and that Grace Presbytery obtain all additional relief to which they are entitled.
NOTICE OF REMOVAL
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Respectfully submitted, /s/ William D. Sims, Jr. _____ William D. Sims, Jr. Texas Bar No. 18429500 bsims@velaw.com Thomas S. Leatherbury Texas Bar No. 12095275 tleatherbury@velaw.com Daniel L. Tobey Texas Bar No. 24048842 dtobey@velaw.com Robert P. Ritchie Texas Bar No. 24079213 rritchie@velaw.com VINSON & ELKINS LLP 2001 Ross Avenue, Suite 3700 Dallas, Texas 75201 Tel: 214-220-7700 Fax: 214-220-7776 Attorneys for Defendant Grace Presbytery, Inc. CERTIFICATE OF SERVICE I hereby certify that on September 19, 2013, I served a true and accurate copy of the foregoing document on the following counsel via certified mail: Kent C. Krause CRADDOCK DAVIS & KRAUSE LLP 3100 Monticello Avenue, Suite 550 Dallas, Texas 75250 and Lloyd J. Lunceford TAYLOR, PORTER, BROOKS, & PHILLIPS, L.L.P. 451 Florida St, 8th Floor Baton Rouge, Louisiana 70801
NOTICE OF REMOVAL
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EXHIBIT A
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EXHIBIT C D E F G H I J K L M N O
US 2094240v.1
DATE FILED September 10, 2013 September 10, 2013 September 10, 2013 September 10, 2013 September 10, 2013 September 10, 2013 September 10, 2013 September 13, 2013 September 13, 2013 September 13, 2013 September 13, 2013 September 13, 2013 September 13, 2013
DOCUMENT Plaintiffs Original Petition and Application for Injunctive Relief Citation Issued to Grace Presbytery, Inc. Temporary Restraining Order Issued to Grace Presbytery, Inc. Civil Case Information Sheet Temporary Restraining Order to Grace Presbytery, Inc. Deposit Information Sheet for Highland Park Presbyterian Church Cash Bond Affidavit of Michael W. Crain Plaintiffs Motion for Admission of Non-Resident Attorney Pro Hac Vice Kent C. Krauses Motion in Support of Lloyd J. Luncefords Motion Pro Hac Vice Non-Signed Proposed Order Admitting Lloyd J. Lunceford Pro Hac Vice Return of Notice of Temporary Injunction Hearing to Grace Presbytery, Inc. Return of Temporary Restraining Order to Grace Presbytery, Inc. Return of Citation to Grace Presbytery, Inc.
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EXHIBIT C
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.7
cAUSENo.
oc- l - lb ku6
IN TH
ORIGINAL
rJ ',
$ $ $ $
$
, (n lf\ -c
DALL
O u-
't,.) i.' F I
$ $
$
$8tn
l.
Civil
Discovery will be conducted under Level 3 of Rule 190 of the Texas Rules of
Procedure.
II.
REOUEST DISCLOSURE
2.
disclose, within
fifty (50)
days
of
service
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page
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III.
PARTIES
3, 4.
Texas nonprofit corporation doing business in Dallas County, Texas. Defendant may be cited to appear by serving its registered agent for service of process: Connie
t i"*; ;l ci*.ll
\C^J.l\r.,sh
ry.
ft"bry
5.
This Court has jurisdiction based on the Texas Constitution and laws of the State
of Texas, and these claims are within this Court's jurisdictional limits, Plaintiff brings this action
for injunctive and declaratory relief under the common and statutory laws of the State of Texas
and the United States
Wolt 443 U.S, 995 (1979), and; Brown v. Clark, 102 Tex. 323,
334,ll65 W. 360 (1909). Plaintiff seeks monetary relief of $100,000 or less and non-monetary
relief.
6.
Venue is proper
$15.001, et seq,
V. FACTS
7.
Church (USA) (UPCUSA" or "denomination"), It is one of 173 such presbyteries in the PCUSA
and is comprised of commissioners (presbyters) from approximately 165 congregations located
throughout 53 counties in Northeast, North Central, and Central Texas. Its principal offices are
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TX
75039-3143. The PCUSA, headquartered
America (the UPCUSA, or northern branch). Upon fbrmation of the PCUSA, the PCUS and the
/
UPCUSA both ceased to exist as separate denominations, and Grace Presbytery became a district administrative unit of the PCUSA, The PCUSA currently has approximately 10,500 member
churches located throughout the United States, including the State of Texas and Dallas County.
Although the national constitution of the PCUSA, The Book of Order, was amended to allege
trust in favor of the PCUSA over all property held by or for particular churches that are affiliated
with the PCUSA, authority under the Book of Order to waive the alleged trust or seek its
enforcement against a particular church is granted to the presbytery in whose geographic bounds
a
8.
PCUSA and is a Texas nonprofit corporation domiciled in Dallas County. Prior to its affrliation
with the PCUSA in 1983, HPPC was a member church of the PCUS. HPPC was first organized
in
1926 and first incorporated on January 31, 1928, as "Highland Presbyterian Church", HPPC
variously amended or restated its articles of incorporation, or reincorporated, in 1978, 1981 , and
2006. The members of the local church corporation are all those who are on the active rolls of
the local congregation, HPPC, located within the geographic bounds of Grace Presbytery, has approximately 4,000 members on its active rolls, is the largest Presberian church in the state of
Texas and, on information and belief, is one of the largest Presbyterian churches in the United
States.
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A.
g.
As more fully set forth below, at all relevant times the articles of incorporation of
Highland Park Presbyterian Church have provided that the members of the corporation or its
corporate board of trustees, when managing the civil affairs of the corporation, shall exercise all powers of the corporation. Said articles further grant, without limitation, exclusive and plenary
authority on all property matters to the local board of trustees or local congregation without such
authority being made subject to any other ecclesiastical entity or to the provisions
of
any
denominational constitution that are in conflict with the local church's articles of incorporation or
10,
Park
implied, in favor of a national denomination upon the property held by or for the local church or
its civil corporation. Said articles were never amended to add such trust provisos. Neither the
congregation, the session (the goveming body of the local church for ecclesiastical matters), or the board of trustees of Highland Park Presberian Church, Inc. (the goveming body of the civil
corporation for temporal matters like property) have ever adopted a congregational, session, or corporate resolution creating or assenting to a trust pertaining to property held by or for the particular church.
I
l.
January 31, 1928. No mention is made in these original articles of any specifrc denomination,
The statement of objects and purposes in Article II state that the corporation is formed "in the
support of public worship, to wit: the maintenance of the Presbyterian Church". Article V states
that "the corporation has no capital stock other than the lot owned by the Church upon which the
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tt
provides that Church building is to be erected, of the estimated value of $60,000.00," Article IV
the the term for which this 1928 corporation is to exist is "50 years". No mention is made in
Articles of Grace presbytery, the Presbyterian Church (USA), or their predecessors, nor is
mention made of any trust over local church property in favor of the PCUSA or its predecessors
and enforceable by Grace Presbytery,
12,
and purpose
Fifty years later "Highland Park Presbyterian Church" amended and restated its
l,lg78.
of the corporation would be to, "encourage, support, maintain and preserve public
worship in the presbyterian Church". Article III(a) and (b) gave exclusive and plenary authority
on all property matters, both real and personal, to the corporation, subject only to
nonproft corporation
Texas
corporation's powers with respect to property subject to any ecclesiastical provisions or to any
ecclesiastical entities beyond the local "Highland Park Presbyterian Church". The only mention
of any other ecclesiastical entity is found in Article VI, which states that "the business and affairs
of the corporation shall be managed by a board of trustees comprised of five persons, except
otherwise provided by the Book
as
States". This Article, however, does not say, "as that Book of Church Order may be amended
from time to time", for example, nor otherwise subordinate the management, control, or
operation of the civil corporation to a separate religious charter, Article
event of dissolution the assets of the corporation would not be distributed by or to the PCUSA or
any
instead be distributed
Texas nonprofit corporation act and the Internal Revenue Code of 1954. No mention is made in
the Articles of Grace Presbytery, the Presbyterian Church (USA), or their predecessors, nor is
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or its predecessors mention made of any trust over local church property in favor of the PCUSA
and enforceable by Grace Presbfery'
13.
of
incorporation
and to
newly provide that, in the event of dissolution, recipient organizations of any distribution of
assets must
qualify for an exemption from Texas property taxation under the Texas property tax
code. As before, all such potential distributions continued to be at the exclusive discretion of the
trustees
accordance
adopted
presbytery, the Presbyterian Church (USA), or their predecessors, nor is mention made of any
trust over local church property in favor of the PCUSA or its predecessors and enforceable by
Grace Presbytery.
14.
and
III
corporation to, "encourage, support, maintain and preserve public worship. The assets and
properties of the corporation are hereby pledged for use in performing its exempt functions'" No
mention is made in the Articles of a particular denomination. Exclusive and plenary authority
for all corporate matters authorized under Texas non-proftt corporation law, including but not limited to property matters, is vested in the corporation and its board of trustees without
the reference to or being made subject to any ecclesiastical provision or any entity other than
corporation, "Highland park presbyterian Church". As previously stated in prior iterations of the
Aticles of Incorporation, the 200 Articles of Incorporation provide that, upon dissolution of the
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t
corporation, distribution
of all
operated
described in section exclusively for religious, charitable and/or educational purposes that are
from Texas property 501(cX3) of the Federal Tax Code and that are qualified for exemption
taxation under the Texas property tax code. No mention is made
is mention made of any Presbytery, the Presbyterian Church (USA), or their predecessors' nol
enforceable by trust over local church property in favor of the PCUSA or its predecessors and
Grace PresbyterY.
15.
On August 31, 2006, the board of trustees of the church corporation adopted
bylaws state that amended and restated bylaws (2006 bylaws). Article [, Section 2 of the 2006 the corporation
educational purposes
within the meaning of Section 501(c)(3) of the Internal Revenue Code of 198, as amended '.,",
Church No mention is made anywhere in the 2006 bylaws of Grace Presbytery, the Presbyterian
(USA), or their predecessors, nor is mention made of any trust over local church property in
favor of the pCUSA or its predecessors and enforceable by Grace Presbytery'
16.
Article I, Section 4 of the 2006 bylaws provides that all members on the active
the
17.
Article II of the 2006 bylaws states in Section I that the duties and responsibilities
of officers of the corporation under the Texas nonprofit corporation act shall be vested in the
of trustees delegates all session (ecclesiastical governing body) of the Church and that the board
granted under of its authority to manage the corporation to said session "exceptfor the authority
2."
Article II, section 2 of the 2006 bylaws provides that the board of trustees
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shall have plenary and exclusive authority to act on behalf of the corporation:
For buying, selling, and mortgaging of the property for the Church,
acquiring and conveying title to such property, the holding and defending title to the same, and the managing of any permnent special funds entrusted to them for the furtherance of the purposes of the Church. In buying' selling' and mortgaging real property on behalf of the Corporation, the board of Church. granted in a duly the authoritv of trustees shall act solelv
constituted meeting of the congregation.
B.
18.
The deeds for all real property owned and held by Highland Park Presbyterian
Church list the owner in title as "Highland Park Presbyterian Church, a Texas corporation". No mention is made of any particular denomination, district presbytery, or other ecclesiastical entity.
None of the deeds contain any trust language, use restrictions or reservations of rights other than
real
a) "East Campus" The main physical plant of Highland Park Presbyterian Church, where
the sanctuary and associated buildings are located, commonly known as the "East Campus", is
situated on two tracts, to wit:
Tract One:
of University Lake Park and Highland Park Presbyterian Church Tracts, an Addition to The City of University Park, Texas, according to
BEING Tract No.
the Plat thereof Recorded in Volume 4,Page 169, Map Records of Dallas County, Texas; and containing 3.34416 acres of land, and being in the John Scurlock Survey, Abstract No. 1351, Dallas County, Texas; and being the same property described in Deed filed November 29, 1932, Volume 1779, Page 00, Deed Records of Dallas County, Texas; and having an address of 3821 University Boulevard, University Park, Texas, 7 5205. Tract Two:
l,
BEING Lots 9 and 10, Block B, of V/indsor Place, an Addition to The City of
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2, Page 299, Dallas, Texas, according to the Plat thereof Recorded in Volume feet of land' trtup R""ords of Dallas ounty, Texas; and containing 18,740 square Dallas 1351, No' *oi" o, less, and being in th John Scurlock Survey, Abstract Deed filed County, Texas; and betg the same property described in Quit Claim County, of Dallas Octobl l, 1974, Volumi 74lgl,Page 2149, Deed Records Park, Texas; and having an address of 3821 University Boulevard, University Texas,75205. b) "West Block" HppC also owns a contiguous block that consists of eleven residential
properties, commonly known as the "West
addresses
of these "West
These Block" properties are set forth in Appendix A, attached hereto and made a part hereof' ,,West Block,, properties are located within Block B of Windsor Place, an Addition to the City
of
299, University park, Dallas County, according to the Map thereof recorded in Volume 2, Page Map Records of Dallas CountY.
c)
and consisting of thee houses whose municipal addresses are 3829 McFarlin, 3833 McFarlin,
being Lots 3g37 McFarlin, all being located on a contiguous block to the south of McFarlin, and 7, g, and 9 in Jenkins Subdivision of Tract 3 of University Park and Highland Park Presbyterian
church Tracts according to the Map recorded in volume 4, Page 24, of the Map Records of
made a part Dallas County. These properties are also listed in Appendix A, attached hereto and hereof.
lg.
is The estimated value of the real property of Highland Park Presbyterian Church
thirty million dollars ($30,000,000.00), All of it, the land and all improvements thereon, were
members purchased, built, insured, and maintained using funds donated exclusively by local
of
HppC, without any assistance from the PCUSA, Grace Presbytery or their predecessors-with
25, 1927 for the single exception of one "loan" from the PCUS Home Missions Board on May
$7,500.00.
20.
,.. to According to HppC minutes of June 12, 1927, this $7,500,00 sum was "aid
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enable us to erect and possess a House of Worship and that in order to obtain such aid in such amount it would be necessary for the Trustees of the Church to execute a bond in the amount of
$7,500.u Repayment of the bond was to be secured by a lien on the church property' However,
according to the June 12, 1927 minutes, re-payment was required only
if
existence or "the mortgage and property be alienated or abandoned, or the House of Worship be alienated or abandoned as a House of Worship"'
Zl.
Grace Presbytery, the PCUSA, and their predecessors have not provided any
substantial financial support to HPPC in over eighty-five (85) years. HPPC has, however, since
its formation in 1926, made substantial financial contributions to Grace Presbytery, the PCUSA,
and their predecessors. Over the past fifteen years alone, from 1998 forward, HPPC has donated
to Grace Presbytery and to the PCUSA, in voluntary per capita contributions, voluntary mission giving, and special offerings and other related giving and support, in excess of $3,000,000.00.
II).
and the Rules of Discipline, The Book of Order underwent substantial revision, effective July,
2011, and many of its former provisions that were retained were newly numbered' The provisions
in the PCUSA
Constitution relating
to
exclusively in the Form of Government of the Book of Order, Chapter Four G-4'01
- G.4.40208
- G-8.700).
23.
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rt
g.020l), which asserts that, "All property held by or for a particular church ... is held in trust
nevertheless for the use and benefit of the Presberian Church
for the assertion by Grace Presbytery of a right to assert control over the use and disposition of
all property held by or for HppC, Inc. It is the position of HPPC, Inc., however, that this clause,
and its predecessor added to the PCUS Book of Church Order in the last year of the PCUS' existence, are not applicable to plaintiffs property and are not legally enforceable under the Constitution or laws of the State of Texas.
24.
pertain to ownership. G-4.0207 (formerly G-8.0600) alleges that a PCUSA presbyery (such
Grace Presbytery) may dictate ownership of local church property located within the geographic
bounds of the presbytery-under certain circumstancos that the presbytery can manufacture or create. The PCUS Book of Church Order was amended in 1982/83 to add a similar clause (6-5). On information and belief, the PCUS Book of Church Order did not previously contain a similar
clause. It is plaintiff s position that G-4.0207 and any predecessor clause in the PCUS Book of
Church Order are not applicable to plaintiff s property and are not legally enforceable under the Constitution or laws of the State of Texas.
25.
from the pCUSA and provides that when a local church ceases to be a particular church of the
pCUSA its property shall be "held, used, applied, transferred, or sold as provided by
the
presbytery.,' The PCUS Book of Church Order was amended in 1982/83 to add a similar clause
(6-4). On information and belef, the PCUS Book of Church Order did not previously contain a
similar clause. It is the plaintiffls position that G-4,0205 and any predecessor clause in the pCUS Book of Church Order are not applicable to plaintiffs property and are not legally
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26.
Although G-4.0206 (formerly G-8.0501) of the PCUSA Book of order states that
sell, mortgage the written permission of the presbytery is required before a particular church can
PCUS or otherwise encumber any of its real property, Chapter 6 of the 198211983 edition of the
,.Nothing in this chapter shall be construed to require a particular church to seek or at 6-g, that 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."
27.
Order that are not substantially similar to provisions in Chapter 6 of the 198211983 edition of the
pCUS Book of Church Order are also not applicable to Highland Park Presberian Church and
are not legally enforceable under the Constitution or laws of the State of Texas'
ZB.
Order. These basic pCUSA goveming principles state at F-3.0101 that, as a matter of religious
freedom, provisions of the denominational constitution are not to be enforced through the power
(a)
That ,,God alone is Lord of the conscience, and hath left it free from the doctrines and commandments of men which are in anything contrary to his Word, or beside it, in matters of faith or worship"'
(b) Therefore we consider the rights of private judgment' in all matters thatrespectreligion,asuniversalandunalienable:@
see anv religiouJ
constitution aided bv the civil power, further than may be prouction and security, and at the same time, be equal and
sets
Zg.
forth the principle that the collective organization or gathering (communion) of Christians under PLINTIFF'S ORIGINAL PETITION AND APPLICATION FOR INJUNCTM
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property a presbyterian form of govemment should not burden or infringe existing or vested
1647, included
title or property which each man hath in his goods and possessions'"
30.
sets forth
an
exemption from certain property provisions of the PCUSA Book of Order. G-4'0208 provides
that no particular church (local congregation) of the PCUSA shall be bound by any
of the
property provisions in the Book of Order if it was not previously subject to a similar provision in
the denominational constitution it was subject to immediately prior to the creation of the PCUSA
long as that congregation, within a period of eight years following the establishment of
pCUSA, votes to claim this exemption. tn the event of such timely vote, a particular 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 Presberian Church USA"'
31.
congregational
meeting on April 29,1984. At that meeting the congregation adopted a motion to exercise the
exemption provision
in
(then) Chapter
Order,
it
being the
holding of property of Highland Park Church in accordance with PCUS Book of Church Order
(1982-83 edition), "The Form of Government, Chapter
presbyterian Church, notice of which was received by Grace Presbytery, manifests an intent by Highland park Presbyterian Church to reject any ownership or control claims by a denomination,
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13
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concept of or claims by the denomination of a right to determine ownership, and to reject the
for the use holding or conveying any of its property in trust, or creating or establishing a trust,
and benefit of a national denomination, whether the PCUSA or the PCUS'
32.
the congregational meeting at which Highland Park Presbyterian Church claimed the exemption,
individual who moved that the congregation claim the exemption, Mr, Burton Gilliland
(corporate trustee and chairman of the property acquisition committee), explained prior to the
vote that the motion pertained "to the manner in which the church owns and operates its real
estate
... In our former denomination (PCUS) we operated under the PCUS Book of Church
Order which gave the congregation complete control over its property. The new Book of Order
pC(USA) provides that our former denomination (PCUS) could, by action of the congregation, opt to continue operating its property as in the past." The text of this explanation, provided to
the congregation immediately prior to its vote, indicates that its understanding and intent was to
preserve not only the congregation's ownership but also its exclusive right to control the use and
33.
the
of its
to G-3.0108a
(formerly G-g.0407 - g.040g) of the pcusA Book of order was accepted without objection by
with the Grace presbytery in affrrmation that said proceedings were "regular and in accordance
Constitution,' and were 'rudent and equitable". This notice was in the form of a letter from of Grace Harry S. Hassall, Vice-Moderator of the HPPC session, to Rev. A.M. Hart, Stated Clerk
Presbytery, dated MaY 7, 1984.
34.
The effect
of
G-4.0208
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of Church Order (formerly G-8.0700) and thereby fall back on Section 6-8 of the PCUS Book
was to negate the assertion
of a trust at
of an unfettered right
to
of giving determine the use, control, or disposition of one's own property is mutually exclusive
property' consent to another party to determine the use, control, or disposition of that same
35.
was founded
For approximately sixty years, from the time Highland Park Presbyterian Church
in
with which
it
was affiliated ever contained any express trust clause in the denominational
the
constitution. prior to the addition of express trust language in the 1982/1983 edition of
in its PCUS Book of Church Order, no denomination with which it was aff,rliated ever contained
constitution any implied trust over local church property which ran in favor of the national
denomination.
36.
In anticipation of the merger of the "southem chursh" and the "northern church,"
in the year immediately prior to the 1983 formation of the PCUSA, the PCUS Book of Church
6-3, Order was reportedly amended to add express trust clauses, in Section 6-1, Section 6-2 and
which clauses frrst appeared in the 1982/1983 edition of the PCUS Book of Church Order'
Sections These three trust clauses are ambiguous, inconsistent and are of uncertain meaning.
6-l
particular and 6-2 of the lgg2llgg3 edition of the PCUS Book of Church Order assert that a
(-'the the
corporation"
denomination.
a trust in favor of
37.
The process whereby trust clauses \^/ere added to the constitutions of the national
denominations
did not include or result from any vote, approval or action by the
local
RELIEF
Pagc l5
Page 17 of 35 PageID 26
congregation
or its
corresponding plaintiff civil
of
property at issue. Instead, corporation, which is the ovner and titleholder of record of the real
atF'3.0204 and Fattend by local congregations. The PCUSA Book of Order expressly states
3.0101 (formerly G-4.0301d and G-1.0301) that presbyters are not required
representative capacity on behalf of local congregations'
to act in
38.
requisite trust clauses were added to the denominational constitutions upon ratification by a
owners
of
in the ratification
39.
The pCUS Book of Church Order did not require, nor does the PCUSA Book of
Order require, that any property deeds include trust clauses in f'avor of a national denomination.
Nor do these denominational charters otherwise require mention or inclusion of the national
local title denomination (such as the pCUS or PCUSA) in the name or identity of the listed,
holdet to propertY.
respectively), ever corporation, or their goveming bodies (the session and the board of trustees,
assertion of a concurred in, accepted or otherwise indicated acquiescence to the denomination's
RELIEF
Page
Page 18 of 35 PageID 27
ownership' use' or trust over local church property nor any denominational claim to determine any improvements control of property titled in the name of the local church corporation or of
their respective thereon. At all times the ecclesiastical congregation, the civil corporation, and
all property governing boards have affrrmed and reaffirmed their understanding and intent that
association, held by the local church, whether incorporated or as an unincorporated religious
of intent, and that none of said property is held in trust for the use
denomination
and
benefit
of a national
or any
if
Presbytery.
D.
TIIE PCUSA/PCUS ACKNOWLEDGE THAT LOCAL CHURCH PROPERTY MATTERS ARE DETERMINED BY STATE LAW AND ARE NOT CONTROLLED BY ASPIRATIONAL ASSERTIONS IN DENOMINATIONAL
CONSTITUTIONS
41.
Section G-4.0101 (formerly G-7.0401) of the PCUSA Book of Order states that,
,.Whenever permitted by civil law, each particular church shall cause a corporation to be formed
and and maintained." The pCUS Book of Church Order also contains clauses authorizing
provides, Book of Order not only mandates incorporation where permitted by civil law, but also
of the local church at G-4.0101, that the corporation so formed shall be the title holder of record
and property. In mandating local church incorporation when permitted by civil law, the PCUSA
matters its district administrative unit, Grace Presbytery, have acknowledged that property
are
asserted
in the PCUSA
of its
by the civil laws of the aspirational only, property matters are instead subject to and determined
Page
l?
Page 19 of 35 PageID 28
has incorporated' state in which the property is located and in which the local church
42.
a)
The pCUSA Book of Order does not, and the former PCUS Book of Church
b)
a local church corporation include the name of the denomination (PCUS or PCUSA) in the local corPorate name; local deeds contain the name of the denomination as part of the gtantee's identification;
c) inclusion of trust language in the deeds; d) local articles of incorporation state that the affairs of the corporation are subject to the denominational constitution irrespective of any contrary
prouirionr in the civil articles of incorporation or state o federal law.
43.
(USA) Middle The pCUSA's "Leeal Resource Manual for Presbyteriq.n Churc.h
Governing Bodies and Churches" expressly acknowledges that the provisions of the PCUSA
are constitution characteristically do not control property matters ("Almost all property matters
44.
distinct realm from temporal, civil authority, by providing, "coveming bodies of the church are
from the govemment of the state and have no civil jurisdiction or power to impose civil
penalties. They have only ecclesiastical jurisdiction." According to this provision, a presbytery or other ecclesiastical governing body of the PCUSA cannot exercise civil power to enforce
a
Nor claim over local church property based on provisions in the denominational constitution'
can they obtain are
those provisions
in derogation of or are contrary to the civil laws of the state. The denomination's property
and
beliel G-
effective in July 9.0102 was replaced by G-3.0102 in the new Form of Government that became
2011.
G-3.0102 provides
in
RELIEF
Pase
18
Page 20 of 35 PageID 29
and declaring and obeying his ecclesiastical jurisdiction for the purpose of serving Jesus christ
of faith, and service, order and disciprine. They may frame statements
questions of doctrine and bear testimony against err in doctrine and immorality in life, resolve
properly brought before them discipline, give counsel in matters of conscience, and decide issues
under the provisions of this Book of Order ..."]
45.
Presbytery have order, which states that the pcusA and its administrative units such as Grace
(in only ecclesiastical jurisdiction and do not have temporal authority over civil matters
(and recognition that property matters are to be governed by state law), former G-1'0301(b)
present F-3.0101b)
of
the
be enforced by denominational constitution are not, as a matter of the free exercise of religion, to matter the civil power of the state through its courts. Therefore, while this court has subject
it, it
authority to the pCUSA Book of Order property provisions, as such would constitute
United unlawful church establishment that is not only prohibited by the First Amendment to the the PCUSA' own States Constitution and the Constitution of the State of Texas, but also by or the constitution. Rather, any valid trust or other property interest in favor of Grace Presbytery
pCUSA,
E.
AND TEXAS LAW DOES NOT PERMIT THE ESTABLISHMENT OF A VALID ENFORCEABLE TRUST IN THE MAI\NER ASSERTED BY GRACE TEXAS LA\il HAS BEEN IGNORED BY GRACE
PRESBYTERY.
PRESBYTERY.
46.
issues concerning
its
governance are
le
Page 21 of 35 PageID 30
--
l.l0l
47.
Alleged trusts purporting to hold Texas land are govemed by Texas law. Toledq
Houston. N.A. v. Ouintana Petroleum Com., 699 S.V/ .2d 864,877 (Tex' App.-Houston [1"
Dist.l 19g5, writ refd n.r.e.) ("[A]s a general rule it is held that the administration of a trust
be imposed on land is govemed by the law of the state where the land is located and must
(l97l)
Florida Bank-& Trust co., 160 F.2d 766,77115th Cir. 1947) ("Matters of administration are
of determined by the law of the situs or the seat of the trust, and the domicile of the trustee
intangible personal property including shares
270(b), comment a.
48.
Texas law requires that any trust concerning realty must be written and signed by
So the settlor. Texas law also makes all trust revocable unless they expressly state otherwise'
existed, it even assuming a trust on behalf of the PCUSA enforceable by Grace Presbytery ever
was revoked in
April
49.
PROP. CODE
id. $ I I 1.00a(a); state v. Rubiqn, 308 s.w.zd 4, l0 (Tex. 1957); RESTATEMENT (SECOND)
if
an
a
either intention to create a charitable trust."). Since at least 1943, Texas statutes have required
declaration, a deed, or a
will from
RELIEF
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the owner holds the l l2.00l (',A trust may be created by: (1) a property owner's declaration that
of the property property as trustee for another person; (2) a property owner's inter vivos transfer
to
owner's
testamentay transfer
to another
19, 1943, TRUST ACT $ 7 (formerly TEX. REV. C1V. STAT. art.7425b-7), Act of April
Leg., R.S,, ch. 148, $ 7, 1943 TEX. GEN. LAWS 232,234'
50,
,'Declarations
competent to
(Tex. Civ. App.-Dallas establish the trust.,, Best Inv. Co. v. Hemandez, 479 S.W.2d 759,763
lglz,writ refd
1937, n.r.e.); wise v. Haynes, 103 s.w.2d 477,483 (Tex. Civ. App'-Texarkana
the trust."), no writ) ("[T]he declarations of the cestui que trust are not competent to establish
51.
The statute of frauds requires that a trust involving realty must be in writing and
("4 trust in
property is enforceable only if there is written evidence of the trust's terms bearing the signature of the settlor or the settlor's authorized agent
1943,48th TRUST ACT $ 7 (formerly TEX. REV. CIV. STAT. art.1425b-7), Act of April 19,
trust in Leg., R.S., ch, 148, S 7,lg43 Tex. Gen. Laws232,234 ("Provided, however, that a
or declared relation to or consisting ofreal property shall be invalid, unless created, established,
it is invalid in Texas.
52.
Even
if
been
revoked. Unlike most states, Texas law declares all trusts revocable unless the trust itself
by the exPress expressly says otherwise: "A settlor may revoke the trust unless it is irrevocable
R-DLIEF
Pase2t
Page 23 of 35 PageID 32 v
CODE
See
Act of April 19, 1943' TEXAS TRUST ACT $ 7 (formerly Tex, Rev. civ. stat. art.7425b-41),
4gth Leg., R.S.,
by ch. 148, $ 7,1943 Tex. Gen. Laws232,234 ("Every trust shall be revocable
of the instrument the trustor during his lifetime, unless expressly made inevocable by the terms
49 S'W' 516' creating the same or by a supplement or amendment thereto'"); Moqday v' Yance' 654,657 (Tex' App'518 (Tex. 1899); Citi?ens Nat. Bank of Breckenridee v. Allen, 575 S.W.2d Eastland
(Tex. App.-Texarkana made specifrcally irrevocable." Ayers v. Mitchell, 16? s.w.3d 924,930
2005, no pet.).
53.
or Nothing in the PCUSA trust clause or anywhere in the PCUSA Book of Order
the
its predecessors expressly created an irrevocable trust, so any alleged trust in favor of
the exemption PCUSA was revocable. That is what HPPC did in April, 1984 by claiming
any provision. The only provision in the Book of Order said to be inevocable-not subject to
vI.
CAUSES OF ACTION
A.
DECLARATORY RELIEF
54. 55.
et
s.w.3d
held that: (Tex. 2013), cause No. l1-0332 (issued Aug 30, 2013),the Texas supreme court
of states that have considered the matter' We hold that Texas We join the majority -the neutral principles rnethodology to determine property courts should se reduce confusicln interests when religious organizationr tt involved. Further, to are difficult to issues the and increascpreaiJtauility n this area of the law where begin with, Texas courts must use only the neutral principles construct'
RELIEF
Page22
Page 24 of 35 PageID 33 .t
of the Applying neutral principles of law to resolve church property disputes, "[O]n the basis
deeds, the terms
of the local church charters, the state statutes governing the holding of church
property, and the provisions in the constitution of the general church concerning the ownership
and control of church property.", Jones v.
or titled in the name of the plaintiff, and any improvements thereon, whether corporeal or
use and incoqporeal, movable or immovable, or real or personal, is held without trust for the
units benefit of the PCUSA or other national denomination, or any of its regional administrative
property titled such as Grace presbytery, Highland Park Presbyterian Church Inc. holds all
narne, and all improvements thereon, in
in its
laws of the State of Texas and as set forth in plaintiffs deeds and articles of incorporation;
has any Neither the pCUSA nor any of its regional administrative units such as Grace Presbytery
rigt, title or interest, in trust or otherwise, in said property, nor right to determine the ownership,
use or control thereof.
B.
INJVNCTIVE RELIEF
56.
The pCUSA Book of Order ambiguously states that when there is a "report" that a
,,affected with disorder" a presbytery can, without prior notice or hearing, particular church is
of
the
and act existing session" (i,e. Remove and replace the governing body of the particular church)
to .,correct the difficulties," which can include the power to "dissolve a pastoral relationship"
(i.e. Remove and replace the local pastor). The use of an administrative commission is intended
correct to address spiritual matters and operate ecclesiastically to assure sound doctrine and to threaten the peace, any internal divisions within a particular congregation that might otherwise
local congregation.
INJUNCTMR-ELIEF
Page2!
Page 25 of 35 PageID 34
ST.PcUsApresbyterieshavebegundepartingfromthecustomaryandexpecteduse
for temporal, civil purposes-as of administrative commissions, and have started misusing them
a device to
purported guise of try and impermissibly expropriate locar church property under the
ecclesiastical cover.
5g.
external denominational actions, congregations, ministers, church offrcers, and trustees to certain
to
assert ownership
or place clouds on
otherwise
by
or
other
assert trusts on local documents in local mortgage and conveyance records which improperly
facts of a local church's property church property in favor of the denomination, regardless of the
is situated, b) without notice history or the laws of the state in which local church property
seize local church assets, and c) sought to change locks on local church property and otherwise
appointed
.,administrative commissions"
to
to supplant existing
for hearing, dissenting congregational govemance by removing, without notice and opportunity
ministers and sessions, thereby permitting the
church property and deal with it as if its own'
confiscate local
Sg.
through its Heightening the threat to local congregational property, the PCUSA,
if a presbytery,
a local church voicing dissent over appoint an administrative commission to take over control of
the synod, ffiY appoint an denominational policies then the next higher ecclesiastical authority,
presbytery, so as to thereby gain control of administrative commission to take over control of the
RELIEF
Page24
Page 26 of 35 PageID 35
60.
to utilize
or
device
property, the PCUSA headquarters denominational ownership and control over local church
prepared legal strategy memoranda, waived any privilege
of
the internet, The PcUSA legal memoranda to the press and public, and made them available on
strategy memoranda:
b)
c)
a cloud on local church property titles by filing recommend placing -records, irrespective of state law or the facts of any affidavits in property proPertY in disPute;
d)
banks recommend mailing letters concerning contested property to any which or other financial institutions that hold accounts for the local church, letters..orderD that no assets be released to the local church;
f)
recommend that presbyteries in their pleadings "use spiritu.al language" to in order to posture t'hemslves in a pt sitive light, and to negatively refer and the local church in the caption and in pleadings as "schismatictt;
g)recommendtopresbyteries,throughtheuseofadministrative secular legal commissions, to try ana kep the local church in a defensive
posture, counseling "Let the schismatics seek caesar's help."
61.
constitutionally protected freedoms, acted aggressively to squelch dissent and the exercise of through the misuse
of
for expropriating
property
on May 27,2012' one day after the bought and paid for and owned by dissenting congregations'
Texas voted by over a75o/o margin to congregation of First Presbyterian Church of Longview,
RELIEF
Page 25
Page 27 of 35 PageID 36
\-
by Grace Presbytery
the week before "assumed original jurisdiction" over FPC Longview. The administrative
commission substituted itself in place of the session (board of elders) that had been duly elected by the congregation, and asserted ersatz authority as the new governing body of the local church
in order to seize use and control of all property held by or for FPC Longview'
62.
A temporary restraining order and temporary injunction while this suit is pending
is necessary to stay the hand of Grace Presbytery frorn appointing an administrative commssion
the that would, without just cause, usurp and replace the authority of the pastor, the session, or board of trustees in order to effect control of the property. Said restraining order and temporary
injunction would protect the members of Highland Park Presbyterian Church who, under Texas nonprofit corporation law and HPPC's Articles of Incorporation, are also the members and in effect the shareholders of the local church corporation. Said restraining order and temporary injunction would preserve the status quo until such time as the question of ownership and use of
Court. Absent a the property of Highland park presberian Church can be determined by this
governing body temporary restraining order and temporary injunction the rights of plaintiff, the
of Higland park presbyterian Church (the session), and the members of the congtegation of
Highland park presbyterian Church, and the property rights
Church will be irreparably injured.
63.
and
Church, and a declaratory judgment that all property held by or for Highland Park Presbyterian
any improvements thereon, whether real or personal, corporeal or incorporeal, movable or its district immovable, is held without any trust in favor of a national denomination or any of
in the name administrative units, such as Grace Presbytery, and that all property held by or titled
RELIDF
Pase26
Page 28 of 35 PageID 37
exclusive ownership and that neither the of the local church corporation is held by it in fi,ll and
or interest, in trust or otherwise' PCUSA nor Grace Presbytery has any right, title
property, nor right to determine the ownership thereof'
in
said
64.
violate state property law The actions by pCUSA presbyteries described above
and Fourteenth Amendments to the and trust law, free speech rights guaranteed by the First Amendment to the united united states constitution, the religion clauses of the First
States
Amendment to the United States Constitution, the due process guarantees of the Fourteenth
and substantive property rights constitution, the counterparts set forth in the Texas constitution, guaranteed under the Texas
impede the ability of Highland Park interfere with appropriate corporate church govemance, meeting free of improper interference' Presbyterian church to hold a onglegational or corporate
Presbyterian church' and cloud the title of property held by Highland Park
65.
enjoyment
presumed when the deprivation Under Texas law a showing of irreparable harm is
of a constitutional right is
of the ownership,
possession, and
66.
remedy at
A monetary award is thus an insufficient purpose is not monetary but spiritual and philanthropic.
of
park presbyterian church will be ineparably injured. lt plaintiffs and the ministry of Highland charitable endeavors of wide-ranging civic and supports numerous ministries, missionaries, and
for Humanity, Interfaith Housing community impact, including but not limited to: Habitat
INJUNCTIVERELIEF
Pasez1
Page 29 of 35 PageID 38
&
service'
literacy education programs, Salvation Army partners, food banks, soup kitchens, childhood
elderly' No amount of a prison ministries, adult job training services, and assisted living for the
to the ineparable damage that would subsequent monetary award would be an adequate remedy
church that would occur as be done to the mission and ministries of Highland Park Presbyterian retaliation for the exercise of a result of confiscatory action initiated by Grace Presbytery in
plaintiffs rights.
67.
an administrative this suit is necessary to stay the hand of Grace Presbytery from appointing the authority of the pastor' the commission that would, without just cause, usurp and replace
HPPC property. Said temporary session, or the board of trustees to thereby effect control over
of Highland Park
law and HPPC's Articles of Presbyterian Church who, under Texas nonprofit corporation
Incorporation, afe also the members and,
in
preserve the status quo until corporation. said restraining order and temporary injunction would
property of Highland park Presbyterian such time as the question of ownership and use of the restraining order and temporary church can be determined by this court, Absent said temporary park presbyterian church (the injunction the rights of plaintiff, the governing body of Highland session), and the members
and
6g.
plaintiff and the members of injunction during the pendency of this suit, the interests of the
outweigh any possible Higland park presbyterian Church and its local church corporation
Rf,LIEF
Page 28
Page 30 of 35 PageID 39
a temporary
from the granting of injury to Grace presbytery, the non-owner, which might result
and injunction being restraining order and a temporary injunction, said relief
interest.
in the public
69.
judgment' prevail on the merits of its suit for permanent injunction and declaratory a temporary \ilHEREFORE, plaintiff, Highland Park Presbyterian church, prays that
that a permanent injunction and a restraining order and temporary injunction be issued herein and
as follows: declaratory judgment be issued herein after trial on the merits
l)
(a) filing anY
A)andanyofitsagents,employeesorotherpersonsor
in its stead, from:
e e
incoporeal, determine or r-eal or personal, of local church property, n the possession of, control of, owned by or titled in the name of Highland Park Presberian Church; and
or
or a right to
riehtstothepropertyofHighlandParkPresberian
butnotlimitedtoseekingtochangethelocksofHPPC,
assume HppC, appointing an administrative commission with authority to ..originairisdict-ion" over HPPC's local governance and control of local property possessed by or titled in HPP by dissolution or otherwise, in any w and responsibilities of the em tloyees HPPC (the session), its congregation' church corporation Highland Park P
ciplinaryactionagainsttheministersormembersof
trustees);
2) 3)
pendency of this suit, from any of Temporary lnjunction - enjoining defendant during the ine acts described in paragraph 1) ofthis prayer;
from any of the acts described Permanent Injunctiop - permanently enjoining defendant
RIILIEF
Paseze
Page 31 of 35 PageID 40
PraYer; and
4)
in paragraph
l) ofthis
j;;'#:'"T:iJ'li11,,",1ilJ};,"Jl'::
rsonal, is held without trust for the use and benefit of the PCUSA y of its regional administrative units such as Grace -holds all property titled in its name, and all mplete ownership pursuant to the laws of the State ar icles of incorporation, and that neither the its regional administrative units such as Grace Presbytery has any in said property nor right to determine the ownership, use or control
ff
5)
petition and order; that defendant be served with a copy of the above and foregoing this Honorable Court that defendant be cited to answer said petition and to appear before at a date and time fixed by this court to show cause why a temporary injunction, prayed for in favor of permanent injunction, and detlaratory judgment should not issue as
plaintiff;
7)
Respectfully submitted,
C.
CRADDOCK DAVIS & KRAUSE LLP 3100 Monticello Avenue, Suite 550
Dallas, Texas 75205 214-750-35s0 2r4-750-3s51 (fax)
And
RELIEF
Page 3o
Page 32 of 35 PageID 41
-t
TAYLOR, PORTER, BROOKS & PHTLLPS, L'L.P. 451 Florida St,, 8th Floor Baton Rouge, Louisiana 70801
22s-381-0273 225-346-8049 (fax)
Page
3l
Page 33 of 35 PageID 42
rr''
VERIFICATION
STATE OF TEXAS
COUNTY OF DALLAS
) ) )
BEFORE ME, the undersigned Notary Public, duly commissioned and qualified in and
for the County aforesaid, personally appeared Michael W. Crain, who being first duly sworn,
did depose and say that he is Chairman of the Board of Trustees for Highland Park Presbyterian
Church, a Texas corporation and the plaintiff herein, that he has read the above and foregoing Petition for Temporary Restraining Order, Temporary Injunction, Permanent Injunction, and for Declaratory Judgment, and is familiar with the facts alleged therein, and that all information contained in the aforesaid petition is true and correct to the best of his knowledge, information
and belief.
IJ
Michael W. Crain
september, 2013, in
%
NOTARY PUBLIC
September6,2014
RELIEF
Page32
Page 34 of 35 PageID 43
UT
LOCAI, RULE
2.02
CERTIFICATp
UnderLocalRule2.02,IcertifythatlamunawafethatDefendantisrepresentedby
ineparable harm is imminent and there is counsel. Prior notice is not appropriate because Further, any greater time of notice would impair insufficient time to notiff the opposing party' matter of the application could the court,s power to grant relief because the subject
accomprished
be
if
further represents that, to the best further notice were required. The undersigned
is presented is not subject to transfer under of his knowledge, the case in which this apprication
Local Rule 1.06.
Kent C.
RELIEF
Pase 33
Page 35 of 35 PageID 44
08743. I
Page 1 of 3 PageID 45
EXHIBIT I)
Page 2 of 3 PageID 46
ATTY
CITATION
DC-13-10605
HIGHLAIID PARK PR.ESBYTERIAN CHURCH INC
vs.
GRACE PRESBYTERY INC SERVE ITS REG AGENT CONNIE M TTIBB 6100 COLWELL BLVD STE IOO DALLAS TX 75039-3148
GREETINGS: You have been sued. You may employ an attorney. If you or your attorney do not file a written ans\iler with the clerk who issued this citation by l0 o'clock a.m. of the Monday next following the expiration of trventy days after you were served this citation and petition, a default judgment may be taken against you. Your answer should be addressed to the clerk of the 298th District Court at 00 Commerce Street, Ste. l0l, Dallas, Texas 75202.
Said Plaintiff being
ISSI.JED THIS
WITNESS: GARY FITZSIMMONS, Clerk of the Disfict Courts of Dallas, County Texas. Given under my hand and the Seal of said Court at offrce this l0th day of September, 2013 ATTEST: GARY FTTZSIMMONS,
Courts of Dallas, County,
fEX
r
(,4
:. i,{
$o
rtJ.
F
fBt
ta)
Page 3 of 3 PageID 47
OFFICER'S RETTIRN
CaseNo.: DC-13'10605
Court No.298th District Court
StyIC: vs.
daY
of
20-_
at
o'clock
,at
--.M'
on the
o'clock-'M'
Executed at
of
of delivery. The distance actually traveled by copy of this pleading, having first endorsed on same date accompanying the with together citation this of copy true person, a each, in my hand' ffiiles and my fees are as follows: To certify which witness me in serving such process
was
of
ForNory
I
(Must be verified if served outside the State of Texas')
before me
this
day
of
20--------------
NotarY
Public
CountY.--
Page 1 of 3 PageID 48
EXHIBIT E
Page 2 of 3 PageID 49
ATTY
20
at
the
o'clock
20 at
of
IN
:::-:::298th District Court
defendant-in
Sheriff
GRACE PRESBYTERY IN
JS.
Total
:_aryD'P"tf_
KENT C KRAUSE 31OO MONTICELLO AVENI]E
STIITE 550
DALLAS TX 75205
214-750-3550
Page 3 of 3 PageID 50
- Form 322
TO
Plaintiff (s for
2013.
Attest:
Deputy
t '?
---
Page 1 of 2 PageID 51
EXHIBIT F
Page 2 of 2 PageID 52
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Page 1 of 4 PageID 53
EXHIBIT G
Page 2 of 4 PageID 54
3L.lf\l".t
CAUSE NO.
5g'.l
ORIGINAL
$
$ $ $
Plaintiff,
v.
$ $
$ $
JT JUDICIAL DISTRICT
TEMPORARYRESW
After considering Plaintiffs Original Petition for Tnporary Restraining Order,
Prelirninary lnjunotion, Pernanent Injunction, and Declaratory Judgmrt filed by Highland Park
Prasbyterian Chwch, the Court finds there is evidence that harm is immine,nt to Plaintiff and
if
the court does not issue the temporary reshaining order, Plaintiff will be ineparably injrued.
Fwtlrer, an er( .parte order, wirout notic'e to Defendant is neccssry becse ere \Mas not
enough time t give notice to Defendant, hold a hearing and issue a restraining order before the
it is hereby issued against Grace Presbytery of the Presbyterian Church (USA), its officers, in active concert or participation
with the Presbytery, or acting by or through the Presblery or on its behalf or in its stead (herein
"Presbytery"); This Temporary Restaining Order pertains to all property held by or for
Highland Park Presbyterian Chrroh and its civil corporation ("HPPC"), both immovable (real)
together
with all buildings and improvements thereon, and movable (personal), whether
corporeal or incorporeal, wherever located, whether held by, for, or in the name of HPPC. The Presbytery is enjoined from filing any documents in the deed and conveyance records of Dallas
Page
Page 3 of 4 PageID 55
County to assert ownership, use or contol, or rights to determine ownership, use or conhol, to
in the
name
Presbytery or other affiliated third party over immovable property titled in the name of HPPC, or
othe,nrise held
by or for HPPC, the effect of which would be to place a cloud on the title of said
immovable property, or othe,rrrrise interfee with or disturb plaintiffs ownership, use, conhol, or disposition of plaintiffs personal or real property, or interfere with plaintifPs right to determine the ownership, wo, co.nEol, or disposition of psonal or real property held by or for HPPC or
held in the possession of, conhol of, or owned by or titled in the name of HPPC,
whether acting directly or indirectly, te tcmporarily enjoined from taking any action that could affect the property rights of HPPC, including but not limited
the locks
of HPPC; 2) initiating any disoiplinary or other retaliatory action against the employees, officers,
ministers or menrbers of HPPC which directly or indirectly arises from or is connected to any
property issue raised in, prompted by, or related to the subject matter
of this litigation;
3)
an
dissolving HPPC
leading
to the appoinnent of
adminisfrative commission to assert original jurisdiction, directly or indirectly, ov HPPC in ordsr to assume or effect conhol over the ownership, use, or disposition of the personal or real property; or, 4) othenvise interfering with the normal duties and responsibilities of the officers, ministers, and employees of HPPC, the gove'rning body of Plaintiff(the session), or the board
of
trustees (the governing body of Plaintiff) or any designees thereof in any way that pertains to the
ownership, contol, use, or disposition of the personal or real property held by, for, or in the
name of HPPC.
Page2
Page 4 of 4 PageID 56
Nothing in this Temporary Restraining Order shall preclude the Presbytery from taking
ecclesiastical action for non-pretextual ecclesiastical cause that is unrelated to this litigation or any property issue raised in, prompted by, related to, or affecting the ownership, control, use, or
disposition of the personal or real property held by, for, or in the name of HPPC.
Lday
of
2013,
aWo'cloct
temporary restraining order should be made a temporary injunction pending a full trial on the
merits.
IT IS FURTHER
effective unless and until Plaintiff executes and files with the clerk a bond in the amount of
Moilars($s^*f
IT IS FURTHER ORDERED, that this Temporary Restraining Order expires
days hereafter from the date entered or until further order of this Court.
fourteen
srcNED
thi"
/0
day of
.7^
,zor3, at/Zfo'crof.n.
JDCE.TIDIm
ONTRnT
eq?&Juotctlr
r0R f,D0t
ourflcT
ff lltuts
00ffiT, Ius
Page 3
Page 1 of 3 PageID 57
EXHIBIT H
Page 2 of 3 PageID 58
lillillilillt ]ilililil
ilt
ilil ]t
GARy@DtrytnlcrCI.ERK
cltBf
0gT'88
CHrcKT
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MINgfS PARE{TOR
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& DRnRs
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MTAOTTOEDc, a[Farrl.
SGIAr|'RB
oFFtctAL RECETPT
Page 3 of 3 PageID 59
Receipt No.
51042-2013-DCLK
Transaction Date
09t10t2013
)n Behalf Of HIGHIAND PARK PRESBYTERIAN CHURCH tNC
DC-13-10605 HIGHLAND PARK PRESBYTERIAN CHURCH INC vs. GRACE PRESBYTERY INC Bond Account CASH BOND DEPOSTT (CtvtL) SUBTOTAL
500.00 500.00
PAYMENT TOTAL
CHECK (Ref #371 81 ) Tendered
500.00
500.00 500,00 0.00
TotalTendered
Change
ogt10t20't3
0 1:19 PM
Audit
56984561
Page 1 of 36 PageID 60
EXHIBIT I
c-13-10006 t tt)
,f FloAvlI ,6 t40 t
Page 2 of 36 PageID 61
Il\
CAUSE NO.
COUNTY OF DALLAS
BEFORE ME, the undersigned authority on this day personally appeared MICHAEL W.
CRAIN, known to me, who after being by me first duly swom hereby deposes and says:
1
My name is Michael W. Crain, and I am the Chairman of the Boad of Trustees for Highland Park Presbyterian Church Inc., Plaintiff in the above-captioned matter. I am ovorthc age of eighteen (18) years, haveneverbeen convictod of a crime and am fully
competent to make this affidavit. am duly qualified, competent and authorize to make this affidavit, the facts of which ae within my personal knowledge and are true and correct.
I have reviewed the attached Plaintiffs Original Petition and Application for Injunctive Relief and specifically affirm the information contained in paragraphs 7 through 45 and paragraphs 55 through 69 as true and correct to the best of my knowledge, information and belief.
Further Affiant saith not.
4.
I,J
MICHAEL W. CRAIN
authority
this the
lfl",
Spmbor6, A014
State of Texas
Arnnvlr
oF MICHAEL W. CRAIN
Pnce I on I
Page 3 of 36 PageID 62
$ $
$
$ $
$
$ $
JUDICIAL DISTRICT
corporation,
complains of Defendant Grace Presbytery, Inc. and for cause of action respectfully alleges:
l.
Civil
Discovery
of
Procedure.
il.
REOU.E-ST FOR DTSCLOSURE
2.
disclose, within
service
AI\ID
RELIEF
Page I
Page 4 of 36 PageID 63
III:
PARTIES
3. 4,
a Texas
not for profit corporation located in Dall. Defendant Grace Presbytery, lnc., at all times material to this action, was and is a
Texas nonprofit corporation doing busincss in Dallas County, Texas. Defendant may be cited to appear by serving its registered agent for service
ry.
JURISDICTIqN AID VENUE
5.
This Court has jurisdiction based on the Texas Constitution and laws of the State
of Texas, and these claims are within this Court's jurisdictional limits. Plaintiffbrings this action
for injunctive and declaratory relief under the common and statutory laws of the State of Texas
and the United States
of Amsrica.
v. Milivojevich,
426 U.S. 696 (1976); Jones v. Wolf, ,143 U.S. 995 (1979), andi Brown v. Clark, 102 Tex. 323, 334,115 W. 360 (1909). Plaintiffseeks monetary relief of $100,000 or less and non-monetary rdlief.
6.
&
Rern. Code,
$15.001, et seq.
v.
FACTS
7.
Church (USA) (UPCUSA" or "denomination"). It is one of 173 such presbyteries in the PCUSA
and is comprised of commissioners (presbyters) from approximately l5 congregations located
throughout 53 counties in Northeast, North Central, and Central Texas. Its principal offices are
RELIEF
Page
Page 5 of 36 PageID 64
Tx
the America (the UPCUSA, or northem branch). Upon formation of the PCUSA, the PCUS and
UPCUSA both ceased to exist as separate denominations, and Grace Presbery became a district administrative unit of the PCUSA. The PCUSA cunently has approximately 10,500 menber
churches located throughout the United States, including the State of Texas and Dallas County.
Although the national constitution of the PCUSA, The Book of Order, was amerided to allege
trust in favor of the pCUSA over all property held by or for particular churchcs that are affiliated
with the PCUSA, authority under the Book of Order to waive the alleged trust o seek its
enforcement against a particular chrrch is granted to the presbery in whose geographic bounds
a particular church is situated.
8.
PCUSA and is a Texas nonprofit corporation domiciled in Dallas County. Prior to its affiliation
with the PCUSA in 1983, HPPC was a member church of the PCUS. HPPC was first organized
in
Church". HPPC
variously amended or restated its articles of incorporation, or reincorporated, in 1978, 1981, and
2006, The members of the local church corporation are all those who are on the active rolls of the local congregation. HPPC, located within the geographic bounds of Grace Presbytery, has
approximately 4,000 members on its active rolls, is the largest Presberian church in the state of Texas and, on information and belief, is one of the largest Presberian churches in the United
States.
R"0LIEF
Pagc 3
Page 6 of 36 PageID 65
A.
g.
As more rlly set forth below, at all relevant times the articles of incorporation
of
Highland Park Presbyterian Church have provided that the mernbers of the corporation or its
corporate board of trustees, wher managing the civil affairs of the oorporation, shall exercise all powers of the corporation. Said articles further
and plenary
authority on all property matters to the local board of trustees or local congregation without such
authority being made subject to any other ecclesiastical entity or to the provisions
of
any
denominational constitution that are in conflict with the local church's articles of incorporation or
10.
Park
Presberian Church contained any provision creating or establishing any trust, express or
implied, in favor of a national denomination upon the property held by or for the local church or
its civil corporation. Said articles were never amended to add such trust provisos. Neither the
congregation, the session (the goveming body of the local church for ecclesiastical matters), or the board of trustees of Highland Park Presberian Church, Inc. (the governing body of the civil
corporation for tnporal matters like propty) have ever adopted a congregational, session, or corporate resolution creating or assenting to a trust pertaining to property held by or for the particular church.
I
January 31, 1928. No mention is made in these original articles of any specifrc denomination.
The statemerit of objects and purposes in Article II state that the corporation is formed "in the
support of public worship, to wit: the mainteriance of the Presbyterian Church". Article V states
that "the corporation has no capital stock othcr than the lot owned by the Church upon which the
RELIEF
Pasc 4
Page 7 of 36 PageID 66
Article IV provides that Church building is to be erected, of the estimated valuc of $60,000.00." is made in the the term for which this 1928 corporation is to exist is "50 years". No mention
nor is Articles of Grace presbytery, the Presbferian Church (USA), or their predecessors,
its predecessors mention made of any rst ovr local church property in favor of the PCUSA or
and enforceable by Grace Presbytery
12.
Fifty years later "Highland Park Presberian Church" amended and rcstated its
part that the objects articles of incorporation, on January I , 1978. Article III provided in relevant prescrve public and pgrpose of the corporation would be to, "encourage, support, maintain and
worship in the presbyterian Church". Aficle III(a) and (b) gave exclusive and plenary authority
on all property mattert, both real and personal, to the corporation, subject only to
nonprofit corporation
Texas
law.
corporation's powers with respect to proprty subject to any ecclesiastical provisions or to any
ecclesiastical entities beyond the local "Highland Park Presberian Church". The only mertion
of any other ecclesiastical entity is found in Article VI, which states that "the business and affairs
of the corporation shall be managed by a board of trustees comprised of five penons, excpt
otherwise provided by the Book'of Church Ordsr
as
of the Presberian
States". This Article, howev, does not say, "as that Book of Church Order may be amended
from time to time", for example, nor otherwise subordinate the managetnent, control, or
operation of the civil corporation to a ssparate religious charter. Article VIII provided that in the_
or event of dissolution the assets of the corporation would not be distributed by or to the PCUSA any of its presbleries but would instead be disibuted in accordance with the provisions
of
made in Texas nonprofit corporation act and the Internal Revenue Code of 1954. No mention is is the Aticles of Grace presbery, the PresbyJerian Chwch (USA), or their predecessors, nor
INJUNCTM
RETIEF
Pagc 5
Page 8 of 36 PageID 67
mention made of any Erst over local chwch property in favor of the PCUSA or its predecessors
and enforceable by Grace Presbflery.
13.
of
On Septnber
27
it
and to
newly provide that, in the event of dissolution, recipirt organizations of any distribution of
assets must
qualify for an exonption from Texas property taxation under the Texas property tax
code. As before, all such potortial distributions continued to be at the exclusive discretion of the
trustees
of distribution
adopted
Presbytery, the Presbyterian Church (USA), or their predecessors, nor is mention made of any
trust over local church property in favor of the PCUSA or its predecessors and enforceable by
Grace Presbery.
14.
On Novenber 14, 2006, Highland Park Presbyterian Church amended of incorporation. New Article III defines the objects and purposes of
and the
corporation to, "encourage, support, maintain and preserve public worship. The assets and
properties of the corporation are hereby pledged for use in performing its exernpt functions." No
mention is made in the Articles of a particular denomination. Exclusive and plenary authority
for all corporate matters authorized under Texas non-profit corporation law, including but not limited to property matters, is vested in the corporation and its boad of trustees without
reference to or being made subject to any ecclesiastical provision or any entity other than the corporation, "Highland Park Presbyterian Church". As previously stated in prior iterations of the
Articles of Incorporation, the 2006 Articles of Incorporation provide that, upon dissolution of the
RELIE'
Pase
Page 9 of 36 PageID 68
corporation, distribution
of all
operated
are described in section exclusively for religious, charitable and/or educational purposes that
from Texas property 501(cx3) of the Federal Tax code and that are qualified for exnption
Articles of Grace turation under the Texas property tan code, No mention is made in the
nor is mention made of any Presbery, the Presbyterian Church (USA), or their predecessors,
and enforceable by trust over local church property in favor of the PCUSA or its predecessors Grace Presbytery.
15.
2006 bylaws state that amended and restated bylaws (200 bylaws). Article I, Section 2 of the
purposes the corporation will be "operated exclusively for religious, charitable and educational
within the meaning of Section 501(cX3) of the Internal Revenue Code of 1986, as amended ..'"'
Church No mention is madc anywherc in the 200 bylaws of Grace Presbytery, the Presbyterian
(USA), or their predecessors, nor is mention made of any trust over local church property in
favor of the PCUSA or its predecesson and enforceable by Grace Presbytery.
16.
Article I, Section 4 of the 200 bylaws provides that all members on the active
Highland Pak Presbyterian Church shall be members
of
the
h
I
")'
that the duties and responsibilities the
17.
of of6csrs of the corporation under the Tex nonprofit corporation act shall be vested in
delegates all session (ecclesiastical governing body) of the Church and that the board of trustees
"except
,, Article II, Section 2 of the 2006 bylaws provides that the board of trustees
ORIGINAL
RELIEF
Pase't
Page 10 of 36 PageID 69
shall have plenary and exclusive authority to act on behalfof the corporation:
acquiring nd conveying title to such property, the holdlng and defendlng tld to thi srme, and the manrging of ony permrnent speclal funds entrusted to them for the furthernce of the purposes of the Church. In buying selling' and mortgging real property on behlf of the Corporrtlon, the bord of trusteec shall ct solelv under the-uthoritv of the Church. granted in r duly constltuted meeting of the congregrtion.
For buying selllng, and mortggng of the property for the Church'
B.
18.
The deeds for all real property owned and held by Highland Park Presberian
Church list the owner in title as "Highland Park Presbyterian Church, a Texas corporation". No mention is made of any particular denomination, district presbytery, or other ecclesiastical rtity. None of the decds contain any trust language, use restictions or reservations of rights othel than
one transfer restricting certain property for use as a church of unspecified nature. The real
property owned and held by Highland Park Presbyterian Church falls into three greral
categories:
a)
"Egg!-@gg"
the sanctuary and associated buildings are located, commonly known as the "East Campus", is
situated on two Eacts, to wit:
Tract One:
Lake Park and Highland Park Presberian Church Tracts, an Addition to The City of University Park, Texas, according to the Plat thereof Recorded in Volume 4, Page 169, Map Records of Dallas County, Texas; and containing 3.3,$416 acres of land, and being in the John Scurlock Survey, Abstract No. 1351, Dallas County, Texas; and being the same property described in Deed filed Nove'mber 29, 1932, Volume 1779, Page 600, Deed Records of Dallas County, Texas; and having an address of 3821 University Boulevard, University Park, Texas, 7 5205.
l, of Univsity
Tract Two:
BEING Lots 9 and 10, Block B, of Windsor Place, an Addition to The City of
RELIEF
Page E
Page 11 of 36 PageID 70
2, Page 299' Dallas, Texas, according to the Plat thereof Recorded in Volume feet of land, f"fp r*rr'of putl.r ounty, Texas; and containing 18,740 square Dall roi. ot less, and U"ing in th ohn Scurlock Survey, Atstract No. 1351, filed Deed Claim Co*ty, it*"r; and being the same property des.tiq.l in Quit County, 1974, Volum 74lgl, Yage Zt+0, Deed Records of Dallas Octob Park, University fex; an having an address of 3gt University Boulevard,
l,
Tex,75205.
b)
"@!d"
these "west
hereof' These Block" properties are set forttr in Appendix A, attached hereto and made a Prt
,,West Block,'properties are located within Block B of Windsor Place, an Addition to the City
of
2,Page 299, University park, Dallas County, according to the Map thereof recorded in Volurno Map Records of Dallas CountY.
Subdivision" properties,
McFarlin, and consisting of th,ree houses whose municipal addresses arc 3E29 McFarlin, 3833
Lots 3g37 McFarlin, all being located on a contiguous block to the south of McFarlin, and being Presbyterian Z, g, and 9 in Jerikins Subdivision of Tract 3 of University Park and Highland Park
Church Tracts according to the Map recorded in Volume 4, Ptge 24, of the Map Records
of
a part Dallas County. These propei.ties are also listed in Appendix A, attached hereto and made
hereof.
19.
The estimated value of the real property of Highland Park Presberian Church is
thirty million dollars ($30,000,000.00). All of it, the land and all improvnents thereon' were
purchased, built, insured, and maintained using funds donatcd exclusively by local members
of
HppC, without any assistance from the PCUSA, Grace Presbytery or their predecessors-with
fot the single exception of one "loan" from the PCUS Home Missions Board on May 25,1927
$7,500.00.
20.
According to HPPC minutes of June 12, 1927, this $7,500.00 sum was "aid
AIIID APPLICATION
'
"
to
PLAINTIFF'S
INJUNCTM
RELIEF
Page e
Page 12 of 36 PageID 71
that in order to obtain such aid in such enable us to erect and possess a House of wonhip arrd church to execute a bond in the amount of amount it would be neccssary for the Trustees of the
by a lien on the chufch property. However, $7,500.,, Repaymrt of the bond was to be secured
only if HPPC ceased corporate according to the June 12, lg27 minutes, re-payment was required
sxistence or
,,the
21.
not provided any Grace Presbery, the PCUSA, and their predecessors have
(85) years. HPPC has, however' since substantial financial support to HPPC in over eighty-five Presbytery, the PCUSA, its formation in 1926, made substantial financial contributions to Grace
1998 forward, HPPC has donated and their predecessors. over the past fifteen years alone, from
voluntary missipn to Grace presbyte,ry and to the PCUSA, in voluntary per capita contributions,
giving, and special offerings and other related giving and support, in excess of $3,000,000'00'
C.
TTIE BASIS OF GRACE PRESBYTERY'S CLAIM TO THE PROPERTY OF IIIGHLA{D PARK PRESBYTERIATI CIIURCTI
22,
The Constitution of the PCUSA consists of two parts, the Book of Confessions
II).
Directory of Worship and divides itself into three main sections: the Form of Government, the revision, effective July, and the Rules of Discipline. The Book of Order underwent substantial
2lll,
and many
of its former
provisions
in the pCUSA
Constitution relating
to
G-4.01 exclusively in the Form of Government of the Book of ord, Chapter Four
- G.4'40208
G-8.700)'
23.
RELIEF
Pagc
lo
Page 13 of 36 PageID 72
clause is the basis nevenhcless for the use and benefit of the Presbyterian Church (USA)." This
disposition of for the assertion by Grace presbytery of a right to assert control ovsr the use and
this clause, all property held by or for HPPC, Inc. It is the position of HPPC, Inc., however, that
year of the PCUS' and its predecessor added to the PCUS Book of Church Order in the last under the existrce, ae not applicable to plaintiffs property and are not legally enforceabl Constitution or laws of the State of Texas.
24.
(such pertain to ownership. G4.O2O7 (formcrly G-8.0600) alleges that a PCUSA presbytery geographic Grace presbytery) may dictate ownership of local church property located within the
or bounds of the presbytery-under certain circumstances that the presbytcry can manufacture
(6-5). create. The pCUS Book of Church Order was amended in 1982/83 to add a similar clause
On information and belief, the PCUS Book of Church Order did not previously contain a similar
clause. It is plaintiffs position that G-4.0207 and any predecessor clause in the PCUS Book of Chwch Order are not applicable to plaintiffs property and are not legally enforceable under the
Constitution or laws of the State of Texas.
25.
from the pCUSA and provides that when a local church ceases to bs a particular church of the
pCUSA its property shall be "held, used, applied, transferred, or sold as provided by the
presbytery." The PCUS Book of Church order w amended in 1982/83 to add a simila clause
(6-4). On information
and belief, the PCUS Book of Church Order did not previously contain a
similar clause. It is the plaintiffs position that G-4.0205 and any predecessor clause in the
pCUS Book of Chrrch Order ae not applicable to plaintiffs property and are not legally
PLAINTTFF'S
RELIEF
Pase
ll
Page 14 of 36 PageID 73
26.
that Alttrough G-4,0206 (formerly G-8.0501) of the PCUSA Book of Order states
particular church can sell, mortgage the witten pernrission of the presbytery is required bcfore a
of the PCUS or othenvise ericumber any of its real property, Chapter 6 of the 1982/1983 edition
Book of chursh order did notcontain such
a
,Nothing in this chapter shall be construed to requirc a particular church to seek or at 6-g, that
particular church in obtain the consent or approval of any church court above the level of the of its affairs as order to buy, sell or mortgage ttre property ofthat particular chrch in tho conduct
a church of the PCUS."
27.
of the Order that are not substantially similar to provisions in Chapter 6 of the 1982/1983 edition
Church and PCUS Book of Church Order are also not applicable to Highland Park Presbyterian
are not legally enforceable under the Constitution or laws of the State of Texas.
Zg.
Order. These basic pCUSA governing principles state at F-3.0101 that, as a matter of religious
the power freedom, provisions of the denominational constitution are not to be enforced through
states:
6.God rlone is Lord of the conccience, and hth left it free from the doctrlne nd commandment of men which are in anythlng contrul to his lVord, or beside it, in matters of fith or worshlp''
()
Tht
Therefore we consider the rtg[ts of private judgmen in ll matters thet respect rellgion, al unlyenl nd unlienable: We do not elven wish to further than mrY be time, be equal and same nd t the common to ll other.
(b)
Zg.
The Book of Confessions (Part I of the constitution of the PCUSA) frrther sets
forth the principle that the collective organization or gathering (communion) of Chistians under
PLAINTIFF''S ORIGINAL PETITION AI{D APPLICATION FOR INJUNCTIVE
RELIEF
Page 12
Page 15 of 36 PageID 74
property burden or infringe existing or vted a resberian form of governnrent should not of |647, included in the Book of Confessions, rights' Specifically, thc Westminster Confession
statos at 6.148,
.Nor doth their communion one with another saints, take away or infringe the
titleorpropertywhicheachmanhathinhisgoodsandpossessions.''
30.c-4.0208(formerlyG-8,0700)ofthePcUsABookofordetsetsforthan
provides of the PCUSA Book of Order' G-4'0208 exernption from ceftain property provisions of the PCUSA shall be bound by any of the that no particular church (local congregation)
in not previously subject to a similar provision property provisions in the Book of order if it w to immediately prior to the creation of the the denominational constitution it was subjeot
PcusA
pcusA,
to its
of
incorporation and'property
to which it was subject irnmediately prior to ownership under the provisions of the constitution USA"' the establishment of the Presbyterian Church
31.
meeting on
calted congregational
exemption provision
Book
of order' it being
the
the at the time that by doing so it would "continue understanding and intent of the congregation
in accordance with Pcus Book of church order holding of property of Highland Park church
(1982-33 edition), "The Form of Goveiment, chapter
Vl'"
an intent by presblerian church, notice of which was received by Grace Presbytery' manifests ownership or control claims by a denomination, Highland park presbytian church to reject any
ORIGINAL
AiID
FOR
RELIEF
Pase
13
Page 16 of 36 PageID 75
and to reject the concept of or claims by the denmination of a right to determine ownershiP,
or establishing a trust' for the use holding or conveying any of its property in trust, or creating
PCUSA or the PCUS' and benefit of a national denomination, whether the
32,
April 29, 1984' As rther indication of intent, according to the minutes of the
church claimed the exnption, the congregational meeting at which Highland Park Presberian
Mr'
Burton Gilliland
explained prior to the (corporate trustee and chairman of the property acquisition committee), ,'to the mannr in which the church owns and operates its real vote that the motion pertained
estate
...
of Church In our former defiomination (PCUS) we operated under the PCUS Book
property' The new Book of Order Order which gavc the congregation complete control over its by action of the congregation, PC(USA) provides that our former deriomination (PCUS) could,
explanation, provided to opt to continue operating its property as in the past." The text of this
and intent was to the congregation immediately prior to its vote, indicates that its understanding
to control the use and prescrve not only the congregation's ownership but also its exclusive right disposition of all of its property.
3S.Followingthecongregationaladoption.oftheApril2g,lgS4motion,thc
congregation notified Grace Presbytery
G'3'01084
(formerly G-g.0407
and in accordance with the Grace presbytery in affirmation that said proceedings were "regular
in the form of a letter from Constitution,, and were "prudsnt arrd equitable". This notice was
Hart, Stated Clerk of Grace Harry S. Hassall, Vice-Moderator of the HPPC session, to Rev. A.M.
Presbytery, dated MaY 7,1984.
34.
G-4'020E The effect of HpPC, Inc.'s timely vote to claim the exernption of
FOR
RELIEF
Psc
14
Page 17 of 36 PageID 76
6-8 of ttrc PCUS Book of chrrch order (formly c-s.ozOo) and ttreby fall back on section within the G-4.0203 (formerly c-8'0201)' even was to negate the assertion of a tnst at right to The express reservation of an unfettered
denomination,s own governing documents.
of giving of one's own property is mutually exclusive determine the use, conhol, or disposition
consenttoanotherpartytodeterminetheuse,control,ordispositionofthatsameproperty'
35.Forapproximatelysixtyyears,ftomthetimeHighlandParkPresbyterianChurch its existe,nce until 1982, no denomination was forrded in 1926, and continuously tluoughout trust clause in the deominational with which it was affiliated ever contained any express constitution. prior to the addition of
express
the
pcus
which it was affiriated ever contained in its Book of chuch order, no denomination with
property which ran constitution any imptied trust over local church
denomination.
?6.
and the "northern church"' In anticipation of the merger of the "southern church"
the PcusA' the PCUS Book of church in the year immediately prior to the 1983 formation of
clauses, in section 6-l Section 6-2 and 6-3' ' order was re,portedly amended to add express trtst of the Pcus Book of church ordef' which clauses nt appeared in the lg82/1g83 edition and are of uncertain meaning. Sections -l These three trust crausss are ambiguous, inconsistent
and
pcus Book of church order assort that a particular 6_20f thc lgg2llgg3 edition of the ("the both the benefit of the particular church church holds titre to property in tust for
corporation
Section
'3
asserts
a tnst in favor of
the
deromination.
17.
to the constitutions of the national The process whereby trust clauses were added
denominations
action by the local did not include or result from an)f vote, approval or
RELIEF
Page 15
Page 18 of 36 PageID 77
congregation
of
at issue. Instead, corporation, which is the owner and titleholder of record of the real property
in
of the trust
3.0101 (formerly G-4.0301d and G-1.0301) that presbyten are not required
representative capacity on behalf of local congregations'
to act in
38.
trust clauses wete added to the denominational constitutions upon ratification by a requisite
number of presbyteries
then-presbyters, voted
owne
of
in the ratification
39.
The PCUS Book of Church Order did not require, nor does the PCUSA Book of
Order require, that any property deeds include trust clauses in favor of a national denomination.
Nor do these deriominational charters otherwise requirc mention or inclusion of the national
denomination (such as the PCUS or PCUSA) in the narne or identity of the listed, local title
holder to property.
40. At no time have the members of Highland Park Presbyterian Church or its
corporation, or their goveming bodies (the session and the board of hustees, respectively), ever concuned in, accepted or otherwise indicated acquiescence to the denomination's assertion of a
RELIEF
Page
Page 19 of 36 PageID 78
tnist over local church property nor any derominational claim to detennine ownership' use' or
control of property titlod in the name of the local church corporation or of any improvements
thereon. At all times the ecclesiastical congregation, the civil corporation, and their respective
governing boards have affirmed and reaffirmed their understanding and intent that all property
in full
and completc owncrship in accordance with the deeds, articles of incorporation and other
documents indicative of intent, and that none of said property is held in trust for the use and
benefit
of a national
denomination or any
if
Presbytery.
D.
TTIE PCUSA/PCUS ACKNO}VLEDGE TIIAT LOCAL CHURCH PROPERTY MATTERS ARE DETERMINED BY STATE LAlry AND ARE NOT CONTROLLED BY ASPIRATIONAL ASSERTIONS IN DENOMINATIONAL CONSTITUTIONS
41.
Section
G4.0l0l
"Whenever pernritted by civil law, each particular church shall cause a corporation to be formed
and maintained." The PCUS Book of Church Order also contains clauses authorizing'and
encouraging incorporation under state law (6-1,6-2 of the 1982/1983 edition). The PCUSA Book of Order not only mandates incorporation where permitted by civil law, but also provides,
at G-4.0101, that the corporation so formed shall be the title holder of record of the local church
property, In mandating local church incorporation when permitted by civil law, the PCUSA and
its district administrative unit, Grace Presbytery, have acknowledged that property matters are
not governed or controlled by the fust or ownership provisions asserted in the PCUSA
constitution, or by the constitution
aspirational only. Property matters are instead subject to and determined by the civil laws of the
PLAINTIFF'S ORIGINAL
RELIEF
Pase
l?
Page 20 of 36 PageID 79
has incorporated: state in which th property is loated and in which the local chwch
42.
of Church The pCUSA Book of Order does not, and the former PCUS Book
(PCUS or
b)
grantee's local deeds contain the name of the denomination as part of the idrtification;
43.
(USA) Middle The pCUSA,s "Leeall Resourse Manual for Presbvterian hurch
of the PCUSA Governins Bodies and Churches" expressly acknowledges that the provisions
property matters are constitution characteristically do not control property matters ("Almost all governed by state law ...").
44.
G-g.0102 of the
distinct realm from tnporal, civil authority, by providing, "Governing bodies of the church are
from the govemmnt of the state and have no civil jurisdiction or powr to impose civil
penalties. They have only ecclesiastical jurisdiction." According to this provision, a presbytery or other ecclesiastical governing body of the PCUSA cannot exercise civil power to enforce
a
Nor claim over local church property based oz provisions in the denominational constitution.
can they obtain
property are in derogation of or are contrary to the civil laws of the state. The denomination's
and
beliet G-
in July 9.0102 was replaced by G-3.0102 in the new Form of Government that became effective
2011.
G-3.0102 provides
RELIEF
Pagc lE
Page 21 of 36 PageID 80
ecclesiastical jurisdiction for the purpose of servirrg Jesus Christ and declaring and obelng his
bear testimony against en in doctrine and immorality in life, resolve questions of doctrine and discipline, give counsel in matters of conscience, and decide issues properly brought before thsn
under the provisions of this Book of Order
.
'."]
45.
only
Order, which states that the PCUSA and its adminishative units such as Grace Presbery have
ecclesiastical jurisdiction and do
recognition that property matters are to be govemed by state law), former G-1.0301(b) (and present F-3.0101b)
of the PCUSA
Book
of
of
the
denominational constitution are not, a matter of the free exercise of religion, to be enforced by
the civit power of the state through its courts. Therefore, while this court has subject matter
it
authority to the PCUSA Book of Order property provisions, as such would constitute
unlawfrl church establishmeirt that is not only prohibited by the First Amerdment to the United
States Contitution and the Constitution of the State of Texas, but also by the PCUSA'y own
constitution Rather, any valid trust or oth property interest in favor of Grace Presbytery or the
PCUSA,
of
E.
TEXAS
DOES NOT PERMIT THE ESTABLISIIMENT OF A VALID AI\D ENFORCEABLE TRUST IN THE MANNER ASSERTED BY GRACE PRESBYTERY. TEXAS LAW HAS BEEN IGNORED BY GRACE PR"ESBYTERY.
tAW
46.
govemed
are
by the Texas Non-Profit Corporation Act. TEX. REV. CIV. STAT. art.
139-
PLAINTIFF'S ORIGINAL
RELIEF
Pagc
le
Page 22 of 36 PageID 81
1.02(AXl), et seq. and $ 304; TEX. BUS. ORGS. CODE $ 1.101 roviding that Texas law
governs internal affairs of entities formed by certificate of formation from Texas).
47.
Alleged trusts purporting to hold Tex land are govemed by Texas law' Tolcdo
[l't
Dist.l 19g5, writ refd n.r.e.) ("[A]s a goreral rule it is held that the administration of a trust
imposed on land is governed by the law of the state where the land is located and must be
supe,rvised
(1971) $ 278. Trusts administered by Texas trustees are governed by Texas law. Warner v. Florida Bank 4, Trust co., l0 F.2d 766,771(56 Cir. 1947) ("Matters of administration are
determined by the law
of the situs or the seat of the hrst, and the domicile of the trustee of
of
stock
is usually the
seat
of the trust.");
48.
Texas law requires that any tust conceming realty must be written and signed by
the settlor. Texas law also makes all tust revocable unless they expressly state otherwise. So
everi assuming a trust on behalf of the PCUSA enforceable by Grace Presbytery ever existed, it
was revoked in
April
49.
ll2.W2 ("A trust is created only if the settlor manifests an intention to creat
id. $ I I1.00a(a); State v. Rubion. 308 OF TRUSTS g 351
S.rW.2d
("4
if
an
inteirtion to create a charitable trust."). Since at least 1943, Texas statutes have required either a declaration, a deed, or a
PROP. CODE
R"ELIEI'
P4c2o
Page 23 of 36 PageID 82
(l) I property
property as trustee for another person; (2) a property owner's inter vivos transfer of the property
to
owner's
testamrtary transfer
accord, TEXAS
48th
. art.7425b-7),
50.
"Declaations
of the purported
beneficiary
competent to
establish the trust." Best tnv. C9. v. Hernandez, 479 S.W.2d 759,763 (Tex. Civ. App.-Dall
r,)Vise
no writ) ("[T]he declarations ofthe cestui que trust are not competrt to establish the trust.").
51.
The statute of frauds requires that a trust involving realty must be in writing and
real or personal
property is enforceable only if there is written evidence of the trust's terms bearing the signature
...
"). This
T(AS
TRUST ACT $ 7 (formerly TEX. REV. Cry. STAT. art.7425b-7), Act of April 19, 1943, 48'h Leg., R.S., ch. 148, $ 7, 1943 Tex. Gsri. Laws 232,234 ("Provided, however, that a trust in
relation to or consisting of real property shall be invalid, unless created, established, or declaed
...").
As the PCUSA trust clause was not signed by the Presbytery or by HPPC, Inc.,
it is invalid in Texas.
52.
Even
if
it
revoked. Unlike most states, Tex law declares all tnsts revocable unless the trust itself
expressly says otherwise: "A settlor may revoke the tnst unles it is rrevocable by the exPrest
RELIEF
Page2r
Page 24 of 36 PageID 83
term of the insrnerit creating it or of an instnment modi$ing it." TEX. PROP, CODE
as
it
TEXAS TRUST ACT $ 7 (formerly Tex. Rev. Civ. Stat. ar.7425b-41), Act of April 19, 1943,
4grh Leg., R.S., ch. 148, g
the trustor dting his lifetirne, unless expressly made inevocable by thc terms of the instrument creating thc same or by a supplnent or amendment thereto.");
Mqd3y-@,
49 S.lV. 516'
518 (Tex. 1899); Citizsr.rs Nqt. Bar of Breckenridse v. Allen, 575 S.W.2d654,657 (Tex.
App.-
Eastland
created under Texas law are revocable, unless 167 S.W.3d924,930 (Tex. App.-Texarkana
AyggJhg!!,
53.
its
Nothing in the PCUSA trust clause or anywhere in the PCUSA Book of Order or
pCUSA was revocable. That is what HPPC did in April, 1984 by claiming the exemption provision. The only provision in the Book of Order said to be irrevocabl*not subject to any
amendment, is this exnption clause.
'vI.
CAUSES OF ACTION
A.
DECLARATORY RELIEF
54. 55.
We
Paragraphs
I through
(Tex. 201 3), Cause No. I l -0332 (issued Aug 30, 2013), the Tex Suprne Court held that:
join the majority of states that have considsred the matter. We hold that Texas courts should use the neuhal principles methodology to determine property
intsrests when religious organizations are involved. Further, to reduce conftsion and increase prediclability in this area of the law where the issues are difficult to begin with, Texas courts must use only the neutral principles construct.
PLAINTIFF'S ORIGINAL
RELIEF
Page22
Page 25 of 36 PageID 84
Applying nzutial principles of law to resolve church property disputeg "[O]n the basis of the
deeds, the terms of the local church charters, the state statutes governing the holding
of church
property, and the provisions in the constitution of the genal church concerning the ownership
and conFol of church property.", Jones v.
or titled in the name of the plaintiff, and any improvements thereon, whether corporeal or
incorporeal, movable or immovable, or real or personal, is held without trust for the use and benefit of the PCUSA or other national denomination, or any of its regional adminishative units
such as Grace
Presbery. Highland Park Presberian Church Inc. holds all property titled in its
nanc, and all improvanrts thereon, in full, complete, and unfettered ownership pursuant to the
laws of the Stato of Texas and as set forth in plaintiffs deeds and articles of incorporation;
Neither the PCUSA nor any of its regional administrative units such as Grace Presbytery has any right, title or interest, in tnst or otherwise, in said property, nor right to determine the ownership,
use or control thereof.
B.
INJUNCTTVE RELIEF
5.
Thc PCUSA Book of Order ambiguously states that when there is a "report" that a
particular church is "affected with disorder" a presbytery can, without prior notice or hearing,
of
the
existing session" (i.e. Rernove and rlace the governing body of the particular church) and act
to "conet the difficulties," which can include the power to "dissolve a pastoral relationship"
(i.e. Rnove and replace the local pastor). The use of an adminisFative commission is intended
to address spiritual matters and operate ecclesiastcally to assure sound doctrine and to correct
any internal divisions within a particular congregation that might otherwise theaten the peace, prrity, and unity within a local congregation.
RELIEF
pase2!
Page 26 of 36 PageID 85
57.
a device to
PCUSA presbytries have begun departing from the customary and expected use
and have started misusing them for temporal,
of administrative commissions,
civil purposes-as
ry
and impernrissibly expropriate local church property under the purported guise
of
ecclesiastical cover.
58.
congregations, ministers, church officers, and trustees to certain extemal denominational actions,
have variously: a) taken acts intended to assert ownership or place clouds on othei'wise
merchantable local property titles
other
documents in local mortgage and conveyance records which improperly assert usts on local church property in favor of the deromination, regardless of the facts of a local church's property
history or the laws of the state in which local church property is situated, b) without notice
sought to change locks on local church property and otherwise seize local church assets, and c)
ministers and sessions, thereby permitting the PCUSA presbytery to effectively confiscate local
church property and deal with it as if its own.
59.
Heightening the threat to local congregational propty, the PCUSA, through its
Note 19", which states in part III thereof that if a presbytery, such as Grace Presbytery, fails to
appoint an adminishative commission to take over control of a local church voicing dissent over
denominational policies then the next higher ecclesitical authority, the synod, Dy appoint an administrative commission to talce over control of the presbery, so as to thereby gain control local chursh property.
of
AIrD
RELTEF
Page24
Page 27 of 36 PageID 86
60.
to utilize "administrative
or
device
denominational ownership and control over local church property, the PCUSA headquarters prepared legal sFategy mnorandq waived any privilege
of
memoranda to the press and public, and made them available on the internet. The PCUSA legal strategy mernoranda:
prooertv dioute. nd in confunctlon therewlth advles how to remove the local partor nd/or governing board of the local church;
comnissionr-lptgi@
b)
odvise how to freeze locl church ssetc and physlcally seize property;
cloud on locl church property titles by flling property ffldavlh ln recordl, lrrespectlve of stte lw or the fcts of any property in dlspute;
c)
rocomrnend placing
d)
recommend malling letter concernlng contected property to any bnks or othcr flnrncll lnsdtutionc tht bold accounts for the locl church, which letter rordert tht no ssetc be relcsed to the local church;
e) ,
recommend tht prerbyterie in thelr pleadingr 'use spiriturl longuage in order to posture themselv ln a positlve light, and to negrtlvely'refer to thc local church in the caption nd in pleadlngs r "gchlsmatlc"; and
presbyterler, througD the . use of dministrtive commlsions, to try rnd keep the locl church i defensive secular legal pocture, counsellng 6l,et the chismstlcs eek Cecr's help.'
g) recommend
to
61.
acted aggressively to squelch dissent and the exercise of constitutionally protected freedoms,
of
bought and paid for and owned by dissenting congrgations. On May 21,2012, one day after the congregation of First Presberian Chrrch of Lonryiew, Texas voted by over a 75%o margin to
RELIEI'
Pase2l
Page 28 of 36 PageID 87
pcusA,
the week before ,'assumed original juisdiction" ovsr FPC Longview. The administrative
been duly elected commission substituted itself in place of the session oard of elders) that had
local church by the congregation, and asserted ersatz authority as the new governing body of the in order to seize use and confol of all property held by or for FPC Longryiew'
62.
A temporary restraining order and ternporary injunction while this suit is pending
is necessary to stay the hand of Grace Presbery from appointing an adminisFative commission
or the that would, without just cause, usurp and replace the authority of the pastor, the session,
tnporary board of trustees in order to effect conol of the property. Said restraining order and injunction would protect the meribrs of Highland Park Presberian Church who, undsr Texas in nonprofit corporation law and HPPC's Articles of lncorporation, ae also the members and
effect the shareholden of the local church corporation. Said restraining order and ternporary
injunction would presqve the status quo until such time as the question of ownership and use
of
a the property of Highland Park Presbyterian Church can be determined by this Court. Absent
tnporary reshaining order and tnporary injunction the rights of plaintiff, the governing body
of Highland Park Presberian Church (the session), and the members of the congregation of
Highland park presbyterian Church, and the property rights
Church will be ineparably injured.
63,
and a declaratory judgment that all property held by or for Highland Park Presbyterian Church,
PLAINTIFF'S
INJUNCTIVERELIEF
Pagc2
Page 29 of 36 PageID 88
of the local chrrcli.corporation is held by it in frlt and exclusive ownership and that neither the
PCUSA nor Grace Presbery has any right, title or interest, in trust or otherwise,
property, nor right to determine the ownership thereof.
in
said
64.
The actions by PCUSA presbyteries described above violate state property law
and trust law, free speech rights guaranteed by the First and Fourteenth Amendments to the
United States Constitution, the religion clauses of the First Amendmerrt to thc United States Constitution, the due process guarantees of the Fourteenth Amendment to the United States
Constitution, the counterparts set forth in the Texas Constitution, and substantive proprty rights
guaranteed under the Texas Constitution, The effect of such actions,
or threatened by Grace Presbytery, would chill if not violate the foregoing, protected rights,
interfere with appropriate corporate church governance, impede the ability of Highland Park
Presbyterian Church to hold a congregational or corporate meeting free of improper interference,
and cloud the title of property held by Highland Park Presbsrian Church.
65.
e'njoymrt
Under Texas law a showing of ineparable harm is presumed when the deprivation
of a constitutional right is
of immoveable
and
66.
remedy at
purpose is not monetary but spiritual and philanthropic. A monetary award is thus an insufficient
law.
of
plaintiffs and the ministry of Highland Park Presbyterian nucn will be ineparably injured. It
supports numerous minishies, missionaries, and charitable endeavors of wide-ranging civic and
community impact, including but not limited to: Habitat for Humanity, Interfaith Housing
RELIEF'
page2l
Page 30 of 36 PageID 89
& Service;
Salvation Army Partrers, food banks, soup kitcheff, childhood literacy education programs,
prison ministries, adult job training services, and assisted living for the elderly. No amount of a
subsequent monetary award would be an adequate rnedy to the ineparable damage that would
be done to the mission and ministries of Highland Park Presbcrian Chrrch that would occur as
a result of confiscatory action initiated by Grace Presbery in retaliation for the exercise of plaintiffs riehts.
67.
this suit is necessary to stay the hand of Grace Presbytery from appointing an administrative
commission that would, without just cause, usurp and replace the authority of the pastor, the
session, or the boad
of
Highland Park
Presbyterian Chrrch who, under Texas nonprofit corporation law and HPPC's Articles
of
corporation. Said reshaining order and ternporary injunction would preserue the status quo until
such time as the question of ownership and use of the property of Highland Park Presberian Church can be determined by this Court. Absent said tnporary restraining order and ternporary
injunction the rights of plaintiff, the governing body of Highland Park Presbyterian Church (the
session), and the members
68.
injunction during the pcndrcy of this suit, the interests of the plaintiff and the members of Highland Park Presbyterian Church and its local church corporation outweigh any possible
RELIEF
Pase2E
Page 31 of 36 PageID 90
injrry to Grace Presbytery, thc on-owner, which might result from the granting of a tnporary reshaining order and a tnporary injunction, said relief and injunction being in the public
interest.
69.
There
prevail on the merits of its suit for permanrt injunction and declaratory judgment.
l)
Temporarv Restraining Orde{ - resEaining and enjoining defendant Grace Presbery of te Presberian Church (USA) and any of its agents, nployees or other penons or entities acting on its behalf or in its stead, from: (a) filing any documents in the mortgage and conveyance records in the County where the subject property is located, the effect of which would be to place a cloud on the title of any proprty titled in the name of plaintiff;
(b) othenvise taking any actiori to claim or assert ownetship, use, or control of local church property, whether corporeal or incorporeal, movable or irnmovable, or real or personal, or a right to determine ownership, use or conhol of local church property, in the possession of, control ofl owned by or titled in the name of Highland Park Presberian
Church; and
(c) asserting any rights to the property of Highland Park Presberian Church, including but not limited to seeking to change the locks of HPPC, initiating any disciplinary action against the ministers or mernbers of
HPPC, appointing an administrative commission with authority to assume "original jurisdiction" ovr HPPC's local governance and control of local property possessed by or titled in HPPC's nane, or otherwise interfering, by dissolution or othelrvise, in any way with the property-related rights and responsibilities of the nployees of HPPC, the governing body of HPPC (the session), its congregation, or the governing body of its local church corporation Highland Park Presbyterian Church (the board of trustees);
2) Temoofary Iniunction 3)
- enjoining defendant during the pendency of this suit, from any the acts described in paragraph l) ofthis prayer;
of
Permanent Iniunctiorl - permanently enjoining defrdant from any of the acts described
FORINJUNCTMRELIE'
Prye2e
Page 32 of 36 PageID 91
in puagaph
l) ofthilPraYer;
and
4) Declaratorv Judrent - declaring that all proprty held by or titled in the name of the ,@ovenertsthereon'n,hethercorporealorincorporeal,movableor
immovable, or ral oipersonal, is held without bust for the use and beriefit of the PCUSA or other national de'nomination, of any of its regional administrative units such as Grace presbery, and that the plaintiff holds all property titled in its narne, and all imprments thereon, in ll and complete ownership pursuant to the laws of the State of Texas and as set forth in plaintiffs articles of incorporation, and that neither the pCUSA nor any of its regional adminishative units such as Grace Presbytery has any right, title or interest in sai property nor right to determine the ownership, use or control
thereof.
5)
that defendant be served with a copy of the above and foregoing petition and order;
6) that defendant
plaintiff;
be cited to answer said petition and to appear before this Honorable Court at a date and time fixed by this Court to show cause why a ternporary injunction, pernranrt injunction, and declaratory judgmcnt should not issue as prayed for in favor of
7)
Respectfrrlly submitted,
c
State Ba No, I1714600 kkrause@cdklawfi rm. com CRADDOCK DAVIS & KRAUSE LLP 3100 Monticello Avenue, Suite 550 Dallas, Texas 75205 2t4-750-3550 214-750-3551 (fax)
turd
PLAINTIFF'S ORIGINAL
RELIEF
Page3o
Page 33 of 36 PageID 92
TAYLOR; PORTER, BROOKS & PHILLIPS, L.L.P, 451 Florida St.,8th Floor
Baton Rouge, Louisiana 70801 225-381-0273 22s-346-8049 (f()
RELIEF
Pasc 3r
o
) ) )
Page 34 of 36 PageID 93
VERIFICATION
STATE OF TE)S
COUNTY OF DALLAS
BEFORE ME, the undersigned Notary Public, duly commissioned and qualified in and
for the County aforesaid, personally appeared Michaol W. Crain, who being first duly swom,
did depose and say that he is Chairman of the Boad of Trustees for Highland Park Presberian
Church, a Texas corporation and the plaintiff herein, that he has read the above and foregoing Petition for Tnporary ResEaining Ordo, Tnporary Injunction, Permanent Injunction, and for Declaratory Judgmrt, and is famili with the facts alleged therein, and that all information
contained in the aforesaid petition is true and correct to the best of his knowledge, information
and belief.
IJ
Michael W. Crain
on this ^yof
September, 2013, in
%
NOTARY PUBLIC
z14
rofiENM.t00ul8
MY COITMISSION EXPIRES
9prs0
RELIEF
Page 32
Page 35 of 36 PageID 94
LOdAL RUtE
Under Local Rule 2.02,
2.02
CERTIFIgATE
that Defendant is represented by
counsel. prior notice is not appropriate because ineparable harm is imminent and there is
insuffEciert time to
greater time
if firther notice were required. The undersigned further represmts that, to the best
case
Kent C.
RELIEF'
Pasc33
Page 36 of 36 PageID 95
APPENDIX A
3916 McFarlin
3920 McFarlin
3926 McFarlin 3928 McFarlin 3543 University 3917 University 3921 University 3929 University
39( University
608743.t
Page 1 of 9 PageID 96
EXHIBIT J
Page 2 of 9 PageID 97
TN TH
DISTRITT COURT
f
$
ORACE PRESBYTERY,INC.
Defend*nt.
Flaintiff
Civil Court cf llas County and Rule XIX of th Rules Governing Admisson to h Bnr
Phtlps, L,L.P",
L
Background
1.
s61rs
declaratory rlief from Defendant Grace Presbylery, a district adminisfrativc unit of fhe Prestryterian Church {US.A.) (*PCUS"),
n.
?,
Taylo
Porter* Brooks
70821; (225') 38'-3221; {225) 346-8049 (faxh Lloyd J. Lunceford hns bcen in practisc
for over 28 years, has been a rnember in good standing of the Louisiana Stto B
I of4
Page 3 of 9 PageID 98
Association sincc 1984, with n aclive law license" Mr. LunEeford's ttorncy registration
sr ber admission nurnber in the $tats of Louisian is #8439, Ivfr" Luncefnrd has nev
been ths subjcct
of any
the
Certifieate of the Clerk of the Supreme Court of the State of Louisiana, Mr. Lunceford is admilted to praetice $ *n ttoiley and counslor at
Louisiana* and his nffne now ppesr$ n the rall of rttonys us a erflber of the bsr
the State of Loisiana in good stnding. Mr, Luuceford is admitted to practice in thc
Middle District Court of l"onisiana, Eastem District Cor*t of luisiana" The Supreme
Court of thc Unitcd States, thq U.S. Fifth Circuit Ccut of Appoals, thc Superior Court
of
Henty County A lpro hac vice) in 2009, the Supreme Court of South Carolina (pro hac
vtceJ
in 2009 and the FourteEnth }udicial District tourt of Beaufort, S.C. ro hoc veg
in 2008.
3.
respected
litigalion experience, and rneets the requiremnt for sdmission under Rute 4,03 of the
Lopal Rules of tho Civil
and Rulc
Admission lp the Bar of Texas, Mr. Lunceford is familiar with the nrles of the State Bar of Texas governing conducl of rnemberu of the Stte Bsr of Texas, snd he will abide at atl tmes by and eomply with the Stato Court Rules as long as tho matter is pending in this
Corrt. The Dpclaration of Lloyd J. Lunceford is attched hereto end incorportd herein
for all intent and purposes as Exhibitn"A".
4"
pro
time and thaf was to provide an Anius Curiae Brief o the Texa Suprone Court in
2812, Th* Texas Suprenrc Court adrnittd Mr. Luncsford pro hpc vlce in Masterson, t
PLAINTIF'FIS MOTION
F1OR
of4
Page 4 of 9 PageID 99
.*
uL
5.
&
Krsusc
reman lead counsel for Plaintiff, Mr. Krsuse finds Mr. Lunccford ts be
r rqputable
attomey and recommends that Mr" Lunceford be sdnittd to practice before this
Honorable Cour'|, pro hac vae
6"
Prve{
WHERFOR, Plaintiff Highlrnd Park Prosbyterin Church Ine. respecttully reque*k that the Court grant this Motion and pemit Lloyd J. tncEford to practics hsroin
pro hacvice,
Respectfully submitted,
CA)DOCK DAVTS & KR.AUSE tLP 3lt Montccllo Avenue, Suite 550
Dallas, Texas 1 52A5-3442 Tl: 214-750-3555 Fsx; 214-750-3551
of4
cE RTr FTCATE
()r
"C,,pr!
F,EE,.
CE
certify th*t efendnnt has not mads n appearance in this Catse to date, therefore I arn unable to confer with counsel for Defcndant regrrding thc rolief roqucstcd 20r3. in the motion heren, signed this l6th day of
hen'eby
C.
I hereby oertify that a true ard cffct copy of the foregoing Motion has becr served on sll parties under the Texas ft"ules oi-Civil procedure this [6th day of
BepternbeE 2013.
c.
ADTT.IISSTON
of4
cAusBNo. DC-13-1005
HTGH
PRES BYTSR,N,N
IN TH DISTRICT COURT
$
$
$ $ $ $ $
DATLAS COUNTY,TBXAS
2981H JUDICTAL
DISTRICT
t, 2,
{f&(},
I am r
Brooks
&
3. 4.
protdings
I have been engaged in tht private praetice of law sncc 1984 qpecializing
am nol n\ry, nsr have I ever bcen ihe srbjct of any liccnsing
5.
fcdcral court.
I hrvs
ty
6.
l(rauge, Tex*s Etate Bnr No, I l7l400, Craddock Davie Krause LL,P, 3100 Montisllo
Avenue, Suite 550; (2141 750-3555; (214) 750-2551, rn am rradily familiar with thc
fao nd is$tc$ presontsd in this casc,
7.
mmbe,rs
I am famitiar with the rulee of the Stnte Bar of Tcxas govcming conduct of
of the State Br uf Toxas, nnd will abde st alt timqs by and comply with the
8,
I declars undsr penalry of perury under thc laws of the States of luisiana and
T*xas the foregoing is tnre and c.orre,ct.
S,igned
Uu
#,ay
of Se,pturnber, 2013.
Pqr
flnoiriut- $w $ar
"Araridbn
whoceddrars
Baton
Fnlda St Fl E
Rou, [A ?0801-1700
i r ntmbcr in good ttanding of thc Loui$ana Strrc Br Assncition of th dte, rod rhrt
seid
ptron
lnuiirn n thc
13rh
of
Aptl
104
Giwnov'ffnyhudndtht5clothcLouisiansStte[arAsocietion.*,#dy
eptember 2013
Inis*
)rtar ar Aslcilon
$
$
$ $ $ $ $
Lunceford pr hac vc*,la this tionn to appear a$ co-c$nscl in sociston with loaal
attomey Kcnt C. Krause. The Court, afrer considerng thc pleadings ard Motion, finds
that the Motion should be granted.
IT t$
tloyd J. Lunceford,
SICNED this
day
of
29t3.
JT.DGE PH-ESIDTNG
tr
-solo pagc-
EXHIBIT K
Plaintiff,
v
GR-ACE PRESBYTERY, INC,
$ $ $ 6 $
$ $ $
zgST
JUDICTAT, DISTRICT
Defendant.
[, Kent C.
Kvause
1.
I am employcd
wll personally
2. I am a practicing ltorfiey
have becn since 1982, My Texas State Bar card number ie 11714600. My ofce addrcss,
tetrephone number, fax number snd email addrcss are includcd below
without resewation tc the Court and, thereforo, re4uest the Court permit Mr. Lunceford to
practico in ths particular proceeding bcfore thc Court. Mr. Lunceford is a partner at the law firm
of Tylor, Portr, Brooks & Phllips, t.L,P. in Baton Rouge, huisiana; (22 3e74221 (phone); (125) 346-8049 (fx) and has been in practce for over 28 years and h beeri a member in good
standing of the Louieiana State Bar Association since 1984. Mr. Lunceford has nevr been the
VrcA
Pagc
sr.rbjt
the Clerk of the Supreme Coun of thp State of Louisiana, Mr. Lunceford is admitted to practite s n attorney and counselor at law in ll the courts
ruTently appars on the roll of attorneys as a member of the bar of thc Stat of l,ouisiana good
standing. Mr. Lunceford is familiar with the rules of thc StatE Bar of Taxas govemng cduct
he
will
abde at
11
Cout Rulcs long as the matter is pending in this Court, The Declaration of Ltoyd
Lunceford is attached hereto as xhibit "A".
WHEREFOR, Kent C. Krause request$ thia Court grant Lloyd J. Lunceford's Motion Pro Hac Vise atd allow him to rppear before this Court until the conclusion of this cause of
action.
Respectfirlly submitted,
CTADDOCK AVIS & KRAUSE LLP 3100 Montcello Avenue, Suite 550 allas, Texas 7 5205-gM2
Tel:
CERTIFIC.{,TE Or CONrRENCE
hereby cerlify that Dfendant has not mads n ppar.mco in this Cause to date, therefore I am unable to confer with counsel for cfcndant rogarding the relief requested in the Motion herein, siged this l6th day of September, 2013.
VIC
Prgo 2
CRTTHC4TE 0F SERvrCp
hereby certify tht g true and correct copy of the foregoing Motion has bsen sorvcd on all parties under thc Tcxas Rules of Civit Procedurc this l6th day of September, 2A.
Kent C.
PR,O
HAC
VIGE
PTg* 9
EXHIBIT L
CAUSE N. DC-13-t0605
0 $ $
$
$
$
J'
Ltnceford pro hac vice, to this aetion, to appear a$ co*counsel in association with local a{trney Ksnt C. Krausc. Th Court, after considering the pleadinp nd Motior, fnds
that the Motion should be grartted.
IT fS THER-EFORE
SIGNHD this
dny
of
,"
,-,
213,
JUDGE Ff,,ESIDINC
-solo pSc-
EXHIBIT M
ATTY
No. : DC-13-10605
the
day
day
of
the
of
of
this Notice.
NOTICE
Sheriff, Dallas Cowrty, Texas ISSUED
B
FEES:
ON THIS TIIE 1OTII DAY OF'SEPTEMBER, 2013 GARY FITZSIMMONS Clerk District Courts, Dallas County, Texas By CARMEN MOORER Deputy
ServingNotice Mileage
$ $
3TOO
t*
***AFFIDAVIT ***
** S ATTACHD *,
***AFFIDAVIT ***
ORiGIFJAL
Form 37S-NOTICE TO SHOIV CAUSE No. DC-13-10605
SUIT PENDING IN THE DISTRICT COURT OF DALLAS COUNTY, TEXAS
vs.
GRACE PRESBYTERY INC
Herein Fail Not, but of this writ, and how you have executed the same, make due refurn.
V/ITNESS: GARY FITZSIMMONS, Clerk of the District Court of Dallas County, Texas.
Given under my hand and seal of office, at Dallas, ON THIS
Attest:
Deputy
Case 3:13-cv-03813-B Document 1-13 Filed 09/19/13 CAUSE NO. DC-13-1060s HIGHLAI{D PARK PRESBYTERIAN CHTTRCH INC.
PIaintiff(s),
$ $
$
vs.
GRACE PRESBYTERY, INC. Defendant(s).
$ $
s
$
s s
AFFIDAVIT OF SERVICE
Came to hand on Tuesday, September 10, 2013 at 4:10 PM, Executed at: 6100 COL\ryELL BOULEVARD, SUITE 100,IRVING, TX within the county of DALLAS at 4:50 PM, on Tuesday, September 10, 201 by delivering to the within named:
{r) cn
|-,
f
S -rt
,- t:' ''
-. 1F.
GRACE PRESBYTERY INC By delivering to its' Associate General Presbyter, MICHAEL THOMPSON Each, in person a true copy of this
U'
U,
=rn =(f
qt,,.
(-r f
BEFORE ME' the undersigned authority, on this day personally appeared Danny L. Haney who after being duly sworn on oath states: "My name is Danny L. Haney. I am a person over eighteen (18) years of age and I am competent to make this affrdavit. I am a resident of the State of Texas. I have personal knowledge of the facts and statements contained in this affrdavit and aver that each is true and conect. I am not a party to this suit nor related or affrliated with any herein, and have no interest in the outcome of the suit. I am familia with the Texas Rules of Civil Procedure, and the Texas Practice and Remedies Codes as they apply to service of process. I have never been convicted of a felony or of a misdemeanor involving moral turpitude. "
Danny L. Haney
of:
By:
- Exp 03/3r/14
Il"r
Sqbribed and Sworn to by Danny L. Haney, Before Me, the undersigned authority, on this of Septenber, 2013.
,i.'
r
Notary
'i;
(irrnrrL
1.-q:#r
11:
L:,:,i
,iJi,): '.1C17
'
EXHIBIT N
the
, and
_____
20 at
ATTY
No. DC-13-10605
20-at
o'clock_M., by delivering to
executedthe
day of
dayof
IN
298th District Court
defendant_in
persori, a
vs.
Sheriff
, Texas.
FEES:
$ $ $
Toral
DALLAS TX 75205
214-750-3s50
r* sEE ATTACHED **
***AFFIDAVIT ***
il
Case 3:13-cv-03813-B Document 1-14 Filed 09/19/13 TEMPORARY RESTRAII{ING ORDER- Form 322
i{iGlr,i,+\L
THE STATE OF TEXAS
TO
GRACE PRESBYTERY INC
WHEREAS, in a certain suit pending in the
ct Court of the 298th District Court of Texas, wherein HIGHLAID PARK PRESBYTERIAI\ CHURCH INC Plaintiff(s) and GRACE PRESBYTERY INC Defendant (s), and the said HIGHLAI\ID PARK for and obtained from the Hon. DALE TILLERY Judge of the 298th District Court , his gracious most TEMPO RARY RESTRAINING ORDER and the said having given bond, as required by the fiat of the judge of the 298th
Di
District Court.
Now, therefore, you, the said GRACE PRESBYTERY INC vour Counselors, Solicitors, Attorneys, Agents, Servants and employees are hereby commanded to DESIST and REFRAIN from SEE ATTACHED COPY OF TRO until firther order of the District Court to be holden within and for the County of Dallas Judicial District of Texas at the Courthouse thereof, in the City of Dallas, at 9:304M ON THE 23RD DAY OF SEPTEMBER 2013, when and where this writ is returnable. HEREIN FAIL NOT, rnderthe penaltyof the law. WITNESS: GARY FITZSIMMONS, Clerk of the District Courts of Dallas County, Texas. Given under my hand and the seal of said Court, at office in the City of Dallas, ON THIS THE fOTH DAY OF SEPTEMBER, 2013.
Attest:
Deputy
.l : , I:ti
s
$ $ $ $ $
vs.
GRACE PRESBYTERY,INC.
Defendant(s).
s
$
AFFIDAVIT OF SERVICE
PM' 100' IRVING' TX SUITE BOULEVARD, Executed at: 6100 COLIVELL within the county of DALLAS at 4:50 PM, on Tuesday, September 10' 2013, by delivering to the within named:
Came to hand on Tuesday, September 10,2013 at 4:10
(-o
'71-r
(:)
)
t"....
<)"
tTI (.r r-
C,'
GRACE PRESBYTERY INC By delivering to its'Associate General Presbyter, MICHAEL THOMPSON Eactu in person a true copy of this
:'
o z.
<n
=rn *Cf, gr
(,
BEFORE ME, the undersigned authority, on this day personally appeared Danny L. Haney who after being duly sworn on oath states: "My name is Danny L. Haney. I am a person over eighteen (18) years of og'e *r. I u* competent to make this affidavit. I am a resident of the State of Texas, I have personal knowledge of the facis and statements contained in this affidavit and aver that each is true and correct. I am not u p*V to this suit nor related or affrliated with any herein, and have no interest in the outcome of the suit. i am familia with the Texas Rules of Civil Procedure, and the Texas Practice and Remedies Codes as they apply to service of process. I have never been convicted of a felony or of a misdemeanor involving moral turpitude. "
Danny L. Haney
of:
By:
- Exp 03/3U14
l-l
Subscribed and sworn to by Danny L. Haney, Before Me, the undersigned authority, on this "v of September' 2013.
Notary
f;llJfff l{Lftr;t il0ifiTl
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'
EXHIBIT O
RGl[,iAL
FORM NO. 353-3. CITATION
ATTY
CITATION
DC-r3-1060s
HIGHLAND PARK PRESBYTERIAI CHURCH INC
vs.
Filed in said Court 10th day of September,2013 against GRACE PRE,SBYTERY INC
For Suit, said suit being numbered DC-13-10605. the nature of which demand is as follows: suit on orHER (crwl,) etc. as shown on said petition REe FoRDrscLosuRE, a copy of which accompanies this citation. If this citation is not served, it shall be eturned
unexecuted.
WITNESS: GARY FITZSIMMONS, Clerk of the District Courts of Dallas, County Texas. Given under my hand and the Seal of said Court at ofice this lOth day of September, 2013.
Deputy rt: ez
t:
Attorney for Plaintiff KENT C KRAUSE 31OO MONTICELLO AVENUE SUITE 550 DALLAS TX 75205 2t4-7s0-3550
Jg
oIl"
rqr
F)
OFFICER'S RETI]RN
CaseNo.: DC-13-10605
Court No.298th District Court Style: HIGHLAIID PARK PRESBYTERIAI CHURCH INC
vs.
GRACEPRESBYTERY INC
day
of at
.M. Executed at
of
each, in Person, a true copy of this Citation together with the accompanying copy of this pleading having me in serving such process
fi
was
follows:
of
said
before mc
this
day
of
20,
Notary Public
i* SEE ATTACHED **
***AFFIDAVIT ***
vs.
GRACE PRESBYTERY,INC.
Defendant(s).
s
$ $
$ $
AFFIDAVIT OF SERVICE
Came to hand on Tuesday, September 10,2013 at 4:10
PM,
r:.:)
Executed at: 6100 COLWELL BOULEVARD, SUITE 100, IRVING, TX within the county of DALLAS at 4:50 PM, on Tuesday, September 10, 2013, by delivering to the within named:
l - ,\
r'
---.u:
)'f:
-l 1
- loo -
ct)
GRACE PRESBYTERY INC By delivering to its'Associate General Presbyter, MICHAEL THOMPSON Each, in person a true copy of this
U.,
=rn 3o
CATION
BEF'ORE ME, the undersigned authority, on this day personally appeared Danny L. Haney who after being duly sworn on oath states: "My name is Danny L. Haney. I am a person over eighteen (18) years of age and I am competent to make this affidavit. I am a resident of the State of Texas. I have personal knowledge of the facts and statements contained in this affrdavit and aver that each is true and correct. I am not a party to this suit nor related or affiliated with any herein, and have no interest in the outcome of the suit. I am familia with the Texas Rules of Civil Procedure, and the Texas Practice and Remedies Corles as they apply to service of process. I have never been convicted of a felony or of a misdemeanor involving moral turpitude." Danny L. Haney
Of:
By:
Dallas
- Exp
ll tb
Suwribed and Sworn to by Danny L. Haney, Before Me, the undersigned authority, on this "t of september,2o13.
f;ii,'if l-'/it/:1T11:l,i-;i,l'i.[i;4fl
',1
Notary
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