Kirks Petition w/ EOP response
Kirk of the Hills's Petition to the Court side by side with Eastern Oklahoma Presbytery's response.
Petition to the Court (Kirk) + Eastern Oklahoma Presbytery's Response
Aug 16, 2006
In the District Court in and for Tulsa County
State of Oklahoma
Case No. CJ-2006-05063
Judge Sellers
Kirk of the Hills Corporation,
an Oklahoma not-for-profit corporation church,
Plaintiff,
vs.
The Presbyterian Church (U.S.A.),
an unincorporated association, and (TULSA)
Eastern Oklahoma Presbytery Of
The Presbyterian Church U.S.A. f/k/a
Presbytery of Tulsa or
Presbytery of Eastern Oklahoma,
Defendants
| # | Kirk of The Hills | PC USA |
|---|---|---|
| Petition | Answer | |
| The Plaintiff Kirk of Hills Corporation (hereinafter "Kirk of the Hills") and, for its Petition against Defendants The Presbyterian Church (U.S.A.) (hereinafter "PC USA") and the (Tulsa) Eastern Oklahoma Presbytery of the Presbyterian Church U.S.A., f/k/a Presbytery of Tulsa or Presbytery of Eastern Oklahoma (hereinafter the "Eastern Oklahoma Presbytery"), would state as follows: | Comes now the Defendant Presbyterian Church (U.S.A) (hereinafter "PCUSA") and for its answer to the Petition of the Plaintiff alleges and states: | |
| I. | The Parties | |
| 1 | Kirk of the Hills is an Oklahoma not-for-profit corporation which operates a church in Tulsa County, State of Oklahoma. | This Defendant admits that the Plaintiff is an Oklahoma corporation and is without knowledge or information sufficient to form a belief as to the truth of the balance of the allegations of Paragraph 1 of the Petition and they are therefore deemed denied |
| 2 | Defendant PC USA is an unincorporated association with members who reside in and are citizens of the State of Oklahoma. | In response to the allegations of Paragraph 2 of the Petition, this Defendant states that it is an unincorporated association whose official name is the Presbyterian Church (U.S.A.) and that is has members who are residents and citizens of the State of Oklahoma. The General Assembly of the Presbyterian Church (U.S.A.) is the highest governing body of the church and is representative of the unity of the synods, presbyteries, sessions, and congregations of the Presbyterian Church (U.S.A.). |
| 3 | Defendant Eastern Oklahoma Presbytery is an Oklahoma not-for-profit corporation which functions in the State of Oklahoma as an administrative agency of Defendant PC USA. | This Defendant admits that the Eastern Oklahoma Presbytery("EOP") is an Oklahoma not for profit corporation and states that EOP is also a governing body of the PCUSA with jurisdiction over particular (local) churches in Tulsa County. The balance of the allegations of Paragraph 3 of the Petition are denied. |
| 4 | This court has subject matter jurisdiction to resolve this dispute and venue is properly laid in this court. | The Defendant admits the allegations of Paragraph 4 of the Petition. |
| II. | Facts Supporting Claims | |
| 5 | On November 20, 1961 Kirk of the Hills was incorporated as a perpetual, not for profit corporation, and organized for the purpose of, among other things, establishing and maintaining a church in Tulsa, County of Tulsa, State of Oklahoma. Kirk of the Hills specifically reserved the right to acquire real and personal property for the general purposes of the corporation, to borrow monies and to pledge property to secure repayment thereof, and to sell the property in order to promote or accomplish the general objects of the corporation. | This Defendant admits that Kirk of the Hills, United Presbyterian, Tulsa, Oklahoma, a corporation, was incorporated on November 20, 1961. The power of that corporation are set out in its Articles of Incorporation and By-Laws. |
| 6 | Consistent with theses purposes, Kirk of the Hills, at various dates (described below) obtained legal and equitable title to certain real and personal property in Tulsa, County Tulsa, State of Oklahoma. | The corporation referenced in Paragraph 5 of this Answer did from time to time obtain interests in certain real and personal property in Tulsa County, Oklahoma. This Defendant is without knowledge or information sufficient to form a belief as to the truth of the balance of the allegations of Paragraph 6 of the Petition and they are therefore deemed denied. |
| 7 | Kirk of the Hills obtained Tract A by way of quit-claim deed from the Eastern Oklahoma Presbytery on February 8, 1969. Tract A is more particularly described as:
The North 396 feet of the West 660 feet of Lot Two (2), in Section Four(4), Township Eighteen(18) North, Range Thirteen (13) East, Tulsa County, Oklahoma. |
In response to the allegations of Paragraph 7, this Defendant states that a quit claim deed dated 8 February 1969 from the Presbytery of Eastern Oklahoma between and to the Kirk of the Hills United Presbyterian Church in the USA, a corporation, was made concerning the real estate identified as Tract A in Paragraph 7 of the Petition. |
| 8 | Upon Execution of quit claim deed, the Eastern Oklahoma Presbytery neither reserved nor obtained any legal, equitable or other interest in Tract A in any respect, but instead conveyed, upon consideration of ten dollars and other good and valuable consideration, all of "its right, title, interest and estate, both at law and in equity, of in and to" Tract A to Plaintiff Kirk of the Hills. | In response to the allegations of Paragraph 8 of the Petition, this Defendant states that te referenced deed speaks for itself. The remaining allegations of Paragraph 8 are denied. |
| 9 | PC USA did not retain or obtain any legal, equitable or other interest in Tract A upon its conveyance to Kirk of the Hills. | In response to the allegations of Paragraph 9 of the Petition, this Defendant states that PCUSA was not the grantor of the referenced quit claim deed. This defendant states that as successor to the United Presbyterian Church in the United Stats of America ("UPCUSA"), it does have an interest in the property described in the Petition as Tract A. |
| 10 | The Eastern Oklahoma Presbytery currently owns no legal, equitable or other interest in Tract A. | The allegations of Paragraph 10 of the Petition are denied. |
| 11 | PC USA currently owns no legal, equitable or other interest in Tract A. | The allegations of Paragraph 11 of the Petition are denied. |
| 12 | Kirk of the Hills obtained legal and equitable title to "Tract B" by way of General Warranty Deed from N.M.F. Inc. on March 14, 1978. Tract B is more particularly described as follows:
A part of LIVINGSTON PARK, BLOCK 1, and addition to the City of Tulsa, Tulsa County, State of Oklahoma, being more particularly described by metes and bounds as follows, to wit: BEGINNING at the Northwest Corner of LIVINGSTON PARK, BLOCK 1, according to the recorded plat thereof, said point being 50.00 feet South of the North line of Section 4, Township 18 North, Range 13 East, and 660.00 feet East of the West line of the NE 1/2 of Section 4, thence S 89°53'03" E a distance of 214.85 feet to a point; thence due South a distance of 55.21 feet; thence along a curve to the left, with a central angle of 30°00'00" and a radius of 210.00 feet a distance of 109.96 feet; thence S 30°00'00" E a distance of 105.00 feet; thence S 60°00'00" W a distance of 243.19 feet; thence along a curve to the left, with a central angle of 8°00'00" and a radius of 190.00 feet a distance of 26.53 feet to a point; thence due West a distance of 722.48 feet to a point; thence due East a distance of 535.27 feet to a point, thence S 89°52'03" E, and parallel with the North line of Section 4, a distance of 124.73 feet to a point; thence N 0°04'11" W a distance of 346.00 feet to the point of beginning, and containing 2.5688 acres, more or less. |
In response to the allegations of Paragraph 12 of the Petition, this Defendant states that a general warranty deed dated 14 March 1978 from N.M.F. Inc. to Kirk of the Hills, United Presbyterian, an Oklahoma corporation was made concerning the real estate identified in Paragraph 12 of the Petition as Tract B, by which the corporation referenced in Paragraph 5 of this Answer obtained an interest. The balance of the allegations of Paragraph 12 of the Petition are denied. |
| 13 | Tract B was conveyed to Kirk of the Hills in consideration of the sum of ninety-three thousand five hundred dollars, together with interest at a rate of 9 1/4% per annum commencing January 1, 1978, as evidenced by a note and mortgage. | The Defendant is without sufficient knowledge or information sufficient to form a belief as to the truth of the allegations of Paragraph 13 of the Petition and they are therefore deemed denied. |
| 14 | Neither PC USA nor the Eastern Oklahoma Presbytery retained or obtained an legal, equitable or other interest in Tract B upon its conveyance to Kirk of the Hills. | The allegations of Paragraph 14 of the Petition are denied. |
| 15 | PC USA did not retain or obtain any legal, equitable or other interest in Tract B upon its conveyance to Kirk of the Hills. | The allegations of Paragraph 15 of the Petition are denied. |
| 16 | The Eastern Oklahoma Presbytery currently owns no legal, equitable or other interest in Tract B. | The allegations of Paragraph 16 of the Petition are denied. |
| 17 | PC USA currently owns no legal, equitable or other interest in Tract B. | The allegations of Paragraph 17 of the Petition are denied. |
| 18 | Kirk of the Hills obtained legal and equitable title to "Tract C" by way of a Quit-Claim Deed executed by four individual grantors on September 5, 1985. Tract C is more particularly described as follows:
PRT LT 1 BEG 428.24S NWC NE Th E722.48 SWLY ON CRV LF 40.85 W693.16 N24.07 POB BLK 1 LIVINGSTON PARK BLOCK 1 |
In response to the allegations of Paragraph 18 of the Petition, this Defendant states that a quit claim deed date 5 September 1985 from James B. Eagleton and Grace Eagleton, husband and wife, and Travis Freeman and Lucia Freeman to Kirk of the Hills, United Presbyterian was made concerning the property identified as Tract C in Paragraph 18 of the Petition, by which the corporation referenced in Paragraph 5 of this Answer obtained an interest. The balance of the allegations of Paragraph 18 of the Petition are denied. |
| 19 | Upon execution of the quit-claim deed by said individual grantors, the Eastern Oklahoma Presbytery obtained no legal, equitable or other interest in Tract C. | In response to the allegations of Paragraph 19 of the Petition, this Defendant states that if execution by the grantors includes delivery of the quit claim deed by the grantors to the grantee, the allegations of Paragraph 19 are denied. |
| 20 | Tract C was conveyed, upon consideration, to Kirk of the Hills, with said conveyance encompassing all of said grantors' "right, title, interest and estate, both at law in equity" in Tract C. | In response to the allegations of Paragraph 20 of the Petition, this Defendant states that the referenced quit claim deed speaks for itself. |
| 21 | The Eastern Oklahoma Presbytery did not retain or obtain any legal, equitable or other interest in Tract C upon its conveyance to Kirk of the Hills. | The allegations of Paragraph 21 of the Petition are denied. |
| 22 | PC USA did not retain or obtain any legal, equitable or other interest in Tract C upon its conveyance to Kirk of the Hills. | The allegations of Paragraph 22 of the Petition are denied. |
| 23 | The Eastern Oklahoma Presbytery currently owns no legal, equitable or other interest in Tract C | The allegations of Paragraph 23 of the Petition are denied. |
| 24 | PC USA currently owns no legal, equitable or other interest in Tract C. | The allegations of Paragraph 24 of the Petition are denied. |
| 25 | Plaintiff Kirk of the Hills also retains sole right, title and interest to all improvements to the real estate and real properties attached to and made a part of the above-described properties. | The allegations of Paragraph 25 of the Petition are denied. |
| 26 | In Addition to the referenced real estate and real property, Plaintiff Kirk of the Hills retains legal and equitable interests in certain personal property. Neither PC USA nor the Eastern Oklahoma Presbytery currently retains any interest in such properties. | The allegations of Paragraph 26 of the Petition are denied. |
| 27 | On or about March 6, 2006, the Reverend Ann Brizendine recorded an "Affidavit" with the County Clerk of Tulsa County. The "Affidavit" contains a Docket Number of 2006025070 and consists of nine (9) pages. | The allegations of Paragraph 27 of the Petition are admitted. |
| 28 | In her affidavit, Reverend Brizendine avers that she is the President of the Board of Trustees for the Eastern Oklahoma Presbytery and is familiar with the "polity of the Presbyterian Church (U.S.A.) and issues involving the Book of Order of the Presbyterian Church (U.S.A.)." Ms. Brizendine claims that the PC USA's Book of Order has created a "trust" in favor of PC USA over Tract A, Tract B, and Tract C, and that Kirk of the Hills cannot encumber its real property without permission of the Eastern Oklahoma Presbytery, and that only the Eastern Oklahoma Presbytery has the authority to sell, dispose of and control all of the real and personal property owned by the Kirk of the Hills. | In response to the allegations of Paragraph 28 of the Petition, this Defendant states that the referenced affidavit speaks for itself. |
| 29 | The Affidavit also indicates that the purported "trust" covers "all property" held by a particular church. | In response to the allegations of Paragraph 28 of the Petition, this Defendant states that the referenced affidavit speaks for itself. |
| 30 | The Affidavit was filed without notice to Plaintiff Kirk of the Hills and without consulting with the Kirk of the Hill's Board of Trustees. | The Defendant is without sufficient knowledge or information sufficient to form a belief as to the truth of the allegations of Paragraph 30 of the Petition and they are therefore deemed denied. |
| 31 | Pursuant to 12 OS § 1141.1 et seq., Kirk of the Hills has made a written request to Defendants that they specifically renounce the effects of said Affidavit and otherwise disclaim any interest otherwise claimed in the Affidavit. | The Defendant is without sufficient knowledge or information sufficient to form a belief as to the truth of the allegations of Paragraph 31 of the Petition and they are therefore deemed denied. |
| 32 | Defendants have declined to take the requested action, and have otherwise failed or refused to take any corrective action regarding the claims or effects of the Affidavit. | In response to the allegations of Paragraph 32 of the Petition, this Defendant states that it has received no request for action as alleged in Paragraph 32. As to the balance of the allegations of paragraph 32, This Defendant is without knowledge or information sufficient to form a belief as to the truth of the balance of allegations of Paragraph 32 of the Petition and they are therefore deemed denied. |
| 33 | Plaintiff Kirk of the Hills did not create a trust in favor of Defendants PC USA or the Eastern Oklahoma Presbytery with respect to any of its real or personal property. | The allegations of Paragraph 33 of the Petition are denied. |
| 34 | An alleged beneficiary of a trust cannot declare a trust. | The allegations of Paragraph 34 of the Petition comprise a legal conclusion to which no response is required |
| 35 | Kirk of the Hills did not consent to the creation of the trust with respect to any of its real or personal property. | The allegations of Paragraph 35 of the Petition are denied. |
| 36 | Kirk of the Hills has not cooperated in the formation of the trust with respect to any of its real or personal property. | The allegations of Paragraph 36 of the Petition are denied. |
| 37 | There is no signed writing evidencing the existence of a trust with respect to any of the Kirk of the Hills' real or personal property. | The Defendant is without sufficient knowledge or information sufficient to form a belief as to the truth of the allegations of Paragraph 37 of the Petition and they are therefore deemed denied. |
| 38 | Kirk of the Hills never intended to convey any of its real or personal property into a trust for the benefit of the Defendants. | The Defendant is without sufficient knowledge or information sufficient to form a belief as to the truth of the allegations of Paragraph 38 of the Petition and they are therefore deemed denied. |
| 39 | Even assuming any document could be construed as creating a "trust" in favor of either or both Defendants, which of Kirk of the Hills denies, such a trust was revocable at the election of Plaintiff Kirk of the Hills, and was and is revoked. | The allegations of Paragraph 39 of the Petition are denied. |
| 40 | Kirk of the Hills has the authority to buy, sell manage, improve, assign, transfer, convey, take, acquire or dispose of real estate and/or real property, including fractional interests, or personal property; to encumber, mortgage or pledge such real estate and/or real property and/or personal property; to lease, let and sublet real estate and/or real property; and to improve, develop, construct, and otherwise us real estate and/or real property and/or personal property, all without the consent of either of the Defendants | The allegations of Paragraph 40 of the Petition are denied. |
| 41 | The PC USA Book of Order, or any other provision governing the PC USA or the Eastern Oklahoma Presbyter, is not governing, or applicable, herein. | The allegations of Paragraph 41 of the Petition are denied. |
| 42 | This Court has jurisdiction to resolve this church property dispute by application of ordinary principles that govern voluntary associations. See Jones v. Wolf, 443 U.S. 595, 602(1979). | The allegations of Paragraph 42 of the Petition comprise a legal conclusion to which no response is required. To the extent that a response is required, the allegations are denied, consistent with the statement by the Court on October 26, 2006 |
| III. | Legal Claims for Relief | |
| A. | Declaratory Relief | |
| 43 | Pursuant to 12 O.S. § 1651, and other neutral principles of law, this Court has the authority to declare the rights of the parties as they relate to Plaintiff rights, title and interests in the above-referenced real estate, real property, and personal property, and to adjudicate the appropriateness and legality of any competing interest in said properties. | The allegations of Paragraph 43 of the Petition comprise a legal conclusion to which no response is required. To the extent that a response is required, this Defendant states that 12 O.S. § 1651 authorizes the Court to enter a declaratory judgment in certain instances, including a determination of the rights of the parties to this action in the property identified in the Petition, in accordance with controlling Oklahoma precedent, including the hierarchical deference standard applied by the Oklahoma Supreme Court in Presbytery of Cimarron v. Westminster Presbyterian Church of Enid. 1973 OK114, 515 P2d 211. The balance of the allegations of Paragraph 43 are denied. |
| 44 | Based on the above and foregoing facts and circumstances, an actual controversy exists as to the rights, status, and legal relations regarding the validity of Defendants' attempts to assert a beneficial or other cognizable interest, by way of deed, contract, trust, or other instrument or agreement, in the properties described hereinabove. | In response to the allegations of Paragraph 44 of the Petition, this Defendant states that an actual controversy exists between the Plaintiff and the Defendants as to the rights of the parties to this action in the property identified in the Petition. The balance of the allegations of Paragraph 44 are denied. |
| 45 | Plaintiff Kirk of the Hills retains the above-described real and personal properties free and clear of any adverse claims or interests asserted by Defendants PC USA and Eastern Oklahoma Presbytery. | The allegations of Paragraph 45 of the Petition are denied. |
| 46 | No trust Interest of any kind exists in favor of Defendants in said properties. | The allegations of Paragraph 46 of the Petition are denied. |
| 47 | Even assuming any document could be construed as creating a "trust" in favor of either or both Defendants, which of Kirk of the Hills denies, such a trust was revocable at the election of Plaintiff Kirk of the Hills, and was and is revoked. | The allegations of Paragraph 47 of the Petition are denied. |
| 48 | Plaintiff seeks a declaration of its rights related to these properties, so that Plaintiff may function according to its certificate of incorporation and bylaws without competing claims of title to Plaintiff's real estate, real property and/or personal property. | In response to the allegations of Paragraph 48 of the Petition, this Defendant states that Plaintiff may be seeking the declaration recited for the purposes alleged, but denies that the Plaintiff is entitled to any affirmative relief. |
| WHEREFORE, Plaintiff Kirk of the Hills requests that this Court declare that Defendants have no legal equitable or other interest in the above-described real and personal properties, that the Affidavit of Reverend Ann Brizendine is a nullity, that no trust interest of any kind exists in favor of Defendants in said properties and that even if such a trust interest were created, the trust was and is revocable at the elections Plaintiff Kirk of the Hills, and was and is revoked, and award Plaintiff Kirk of the Hills attorneys fees and cost and other just and proper relief | ||
| B. | Quiet Title | |
| 49 | Pursuant to 12 O.S. § 1141. an action may be brought by any person in possession, by himself or tenant, of real property against any person who claims an estate or any interest therein adverse to the person bringing the action for the purpose of determining such adverse estate or interest. | Paragraph 49 of the Petition states a legal conclusion to which no response is required. To the extent that a response is required, this Defendant states that Paragraph 49 accurately quotes a portion of 12 O.S. § 1141. |
| 50 | Defendants have caused to be file, in the Office of Count Clerk of Tulsa County, the Affidavit of Reverend Ann Brizendine, as more fully described above. | The allegations of Paragraph 50 of the Petition are denied. |
| 51 | The Affidavit of Reverend Ann Brizendine claims an interest (on behalf of Defendants) in the property described hereinabove; such claims are adverse to those of the Plaintiff, as Defendants retain no interest of any kind in said properties and Plaintiff retains said property free and clear of any claims of Defendants. | In response to the allegations of Paragraph 51 of the Petition, this Defendant states that the referenced affidavit speaks for itself and that this Defendant claims an interest in the property referenced in this action, which interest the Plaintiff's allegations in this action deny. The balance of the allegations of Paragraph 51 are denied. |
| 52 | Based on the above and foregoing facts and circumstances, an actual controversy exists as to the rights, status, and legal relations regarding the validity of Defendants' attempts to assert a beneficial or other cognizable interest, by way of deed, contract, trust or other instrument or agreement, in the properties described hereinabove. | In response to the allegations of Paragraph 52 of the Petition, this Defendant states that an actual controversy exists between the Plaintiff and the Defendants as to the parties' respective rights in the property identified in the Petition. The balance of the allegations of Paragraph 52 are denied. |
| 53 | Plaintiff Kirk of the Hills retains the above-described properties free and clear of any adverse claims or interests asserted by Defendants PC USA and Eastern Oklahoma Presbytery. | The allegations of Paragraph 53 of the Petition are denied. |
| 54 | No trust interest of any kind exists in favor of Defendants in said properties. | The allegations of Paragraph 54 of the Petition are denied. |
| 55 | Even assuming said trust existed, the trust was revocable at the election of Plaintiff Kirk of the Hills, and was is revoked. | The allegations of Paragraph 55 of the Petition are denied. |
| 56 | Plaintiff seeks to quiet title in its favor regarding Defendants' assertion of an adverse interest contrary to that of Plaintiff's right, title and interest in the above-described properties. | In response to the allegations of Paragraph 56 of the Petition, this Defendant states that although Plaintiff may intend to have title quieted in its favor against the Defendants, Plaintiff is not entitled to such relief and the balance of the allegations in Paragraph 56 are denied. |
| WHEREFORE, Plaintiff Kirk of the Hills requests that this Court quiet title in favor of Plaintiff, and declare that the Affidavit of Reverend Ann Brizendine is a nullity, that Defendants have no legal, equitable or other interest in the above-described properties, that no trust interest were created, the trust is revocable at the election of Plaintiff Kirk of the Hills, and was and is revoked, and award Plaintiff Kirk of Hills attorneys fees and cost and other just and proper relief. | 57 Any remaining allegations contained in the Petition not heretofore admitted, are expressly denied. | |
| Affirmative Defenses | ||
| 58 | The Constitution of the Presbyterian Church (U.S.A.) includes the Form of Government, which is detailed format structure of the PCUSA. The particular churches of the PCUSA wherever they are, take collectively, constitute one church. The PCUSA is governed by representative bodies composed of both elders and minister of the Word and Sacrament. These governing bodies are called session (of the particular church), presbytery, synod, and the General Assembly. The nature of Presbyterian order is such that it shares power and responsibility. The system of governing bodies, whether they have authority over one or many churches, sustains such mutual relationships within the structures as to express the unity of the church. The jurisdiction of each governing body is limited by the express provisions of the Constitution, with powers not mentioned being reserved in the presbyteries, and with the acts of each governing body subject to review by the next higher governing body. A larger part of the church, or a representation of it, shall govern a smaller part of the church and determine matters of controversy which arise therein. A representation of the whole will govern and determine in regard to every part and to all parts united so that appeals may be carried from lower to higher bodies, till they be finally decided by the collected wisdom and united voice of the whole church. The provisions of the PCUSA Constitution prescribing the manner in which decisions are made, reviewed, corrected within the PCUSA are applicable to all matters pertaining to property. The applicable procedure under the PCUSA Constitution is the instrument for the resolution of the claims asserted int the Petition. The decision of the ecclesiastical courts is a final and binding decision enforceable by the civil courts and is not open to review on the merits. | |
| 59 | An Administrative Commission was appointed in accordance with PCUSA Constitution to address, inter alia, the same claims set forth in the Petition. The Administrative Commission proceeding constitutes another action pending between the same parties for the same claim. | |
| 60 | This Court must give hierarchical deference to the rulings and holdings of the ecclesiastical courts in accordance with the PCUSA Constitution and Presbytery of Cimarron v. Westminster Presbyterian Church of Enid. 1973 OK114, 515 P2d 211. | |
| 61 | Plaintiff, with knowledge of the facts connected with or relating to the matter alleged in the Petition, ratified and confirmed that this matter is to be resolved pursuant to the provisions of the PCUSA Constitution. | |
| 62 | Plaintiff is estopped from asserting the alleged claims set forth in the Petition. | |
| 63 | Plaintiff has waived the alleged claims for relief set forth in the Petition. | |
| 64 | Under its original Articles of Incorporation and bylaws, the Constitution of the PCUSA and the laws of the State of Oklahoma, Plaintiff did not and still does not have the power or authority to take, hold or convey the real and personal property identified in the Petition, without action by the EOP, which has not occurred. | |
| Counterclaim | ||
| 1 | In 1961, a church was organized in Tulsa, Oklahoma, under the name Kirk of the Hills("Kirk of the Hills") | |
| 2 | Kirk of the Hills was created as a local congregation or particular church of the United Presbyterian Church in the United States of America (UPCUSA) and promised to operate according to the Constitution of the UPCUSA, including its Book of Order. | |
| 3 | As a particular churches of the UPCUSA, the Kirk of the Hills was subject to the jurisdiction and control of a specific presbytery as to various matters, including property. | |
| 4 | Art. XXXII, Sec 4 of the UPCUSA Constitution in effect when the Kirk of the Hills was created within the UPCUSA required that each particular church, except in states forbidding the incorporation of religious bodies (of which Oklahoma was not is not one) shall cause a corporation to be formed to receive, hold, manage and transfer property, and to facilitate the management of its corporate affairs in such a manner as may be directed by the particular church from time to time, in conformity with the Constitution of the UPCUSA. | |
| 5 | Consistent with Art. XXXII, Sec 4 of the UPCUSA Constitution then in effect on November 21, 1961, an Oklahoma corporation name Kirk of the Hills, United Presbyterian, Tulsa, Oklahoma, was formed with articles of incorporation providing, among other items, that:
This corporation is organized for the purpose of supporting worship of Almighty God and instruction in the Christian religion, according to the Constitution of The United Presbyterian Church in the United States of America. This will be done by establishing and maintaining a church for religious worship and religious activity and for the promotion of the social and spiritual welfare of the community, which shall be of a purely beneficent character, and to acquire such property, real and personal, as may be necessary for carrying out of the general purposes above declared; and to borrow money and pledge the property of the corporation to secure the repayment thereof; and to sell property in order to promote or accomplish the objects for which the said corporations is organized. | |
| 6 | Art. XXXII, Sec. 9 of the Constitution of the UPCUSA in effect when the Kirk of the Hills, United Presbyterian, Tulsa, Oklahoma corporation was formed provided that "whether by civil law the trustees of a particular church hold title to tis property or are the officers of a corporation which hold title thereto, they shall deal with such property only as they may be authorized or directed by the session, and their authority in respect to selling, mortgaging and leasing real property shall be subject also to any rights reserved to the congregation by civil law or the bylaws of the particular church and to the permission of presbyter as herein provided." | |
| 7 | Art. XXXII, Sec. 13 of the Constitution of the UPCUSA in effect since 1947 and when the Kirk of the Hills, United Presbyterian, Tulsa, Oklahoma corporation was formed provided that "a particular church shall not sell or mortgage any of its real property without the written permission of the presbytery through the session of the particular church" and that "a particular church shall not lease its real property used for purposes for worship, or lease for more than five years any of tis other real property, without the written permission of the presbyter transmitted through the session of the particular church." | |
| 8 | Art. XXXII, Sec. 12 of the Constitution of the UPCUSA in effect since 1928 and when the Kirk of the Hills, United Presbyterian, Tulsa, Oklahoma corporation was formed provided that "whenever hereafter a particular church is formally dissolved by the presbytery, or has become extinct by reason of the dispersal of its members, the abandonment of its work or other cause, such property as it may have, both real and personal, shall be held, used and applied for such uses, purposes and trusts as the presbytery may direct, in conformity with the Constitution of the United Presbyterian Church in the United States of America." | |
| 9 | While subject to the Constitution of the UPCUSA, including those provisions in Paragraphs 3, 5, 6 and 7 above, the Kirk of the Hills, United Presbyterian, Tulsa, Oklahoma corporation obtained interests in the real and personal property identified in Paragraphs 7, 12, 18 and 26 of the Petition (the "interests"). Those interests could not be transferred out of the ultimate control of the Presbyter (as described in Counterclaim Paragraphs 3, 5, 6 and 7 above) with jurisdiction over the Kirk of the Hills particular church without consent of that Presbytery. | |
| 10 | On June 10, 1983, the UPCUSA and the Presbyterian Church in the United States reunited with the Presbyterian Church (U.S.A.) ("PCUSA") being the church resulting from the reunion. | |
| 11 | As part of that reunion the PCUSA adopted a constitution, as amended from time to time, which provided control by a presbytery in certain instances of property held by or for the benefit of a local or particular church. | |
| 12 | Upon that reunion, Kirk of the Hills became a particular church of the PCUSA, subject to the Constitution of the PCUSA by which Constitution, as amened from time to time, the Kirk of the Hills agreed to be governed. | |
| 13 | Upon the reunion, the Constitution of the PCUSA, to which the Kirk of the Hills, as a particular church holding the interests, subjected itself to operationally identical languages as the provisions of the Constitution of the UPCUSA set forth in Paragraphs 3, 5, 6 and 7 above. Specifically, the constitution of the PCUSA provided, at the reunion, and continues to provide:
Whenever a particular church is formally dissolved by the presbytery, or has become extinct by reason of the dispersal of its members, the abandonment of its work, or other cause, such property as it may have shall be held, used, and applied for such uses, purposes, and trusts as the presbytery may direct, limit, and appoint, or such property may be sold or disposed of as the presbytery may direct, in conformity with the Constitution of the Presbyterian Church(U.S.A.).(G-8.0401) *** A particular church shall not sell, mortgage, or otherwise encumber any of its real property and it shall not acquire real property subject to an encumbrance or condition without the written permission of the presbytery transmitted through the session of the particular church.(G-8.0501) A particular church shall not lease its real property used for purposes of worship, or lease for more than five years any of its other real property, without the written permission of the presbytery transmitted through the session of the particular church.(G-8.0502) | |
| 14 | The Constitution of PCUSA, to which the Kirk of the Hills, a particular church while holding the interests, subjected itself, empowers the presbyter with jurisdiction over the Kirk of the Hills to determine the ownership, use, application or disposition of the property, if the Kirk of the Hills ceases to use the interests in those tracts as a particular church of PCUSA in accordance with PCUSA Constitution. Specifically from 1918 to this day the Constitution of the PCUSA has provided that:
Whenever property of, or held for, a particular church of the Presbyterian Church (U.S.A.) ceases to be used by that church as a particular church of the Presbyterian Church (U.S.A.) in accordance with this Constitution, such property shall be held, used, applied, transferred, or sold as provided by the presbytery. | |
| 15 | The Constitution of PCUSA, to which the Kirk of the Hills, a particular church while holding the interests, agreed to be subject, prohibits the Kirk of the Hills from severing its relationship with the PCUSA without constitutional action by the presbytery to whose jurisdiction the Kirk of the Hills is subject and authorizes the presbytery to determine if one of the factions is entitled to the interests because it is identified by that presbytery as the true church within the PCUSA. Specifically, from 1983 to this day the Constitution of the PCUSA has provided that:
The relationship to the Presbyterian Church (U.S.A.) of a particular church can be severed only by constitutional action on the part of the presbytery. (G11.0103i) If there is a schism within the membership of a particular church and the presbyter is unable to effect a reconciliation or a division into separate churches within the Presbyterian Church (U.S.A.) This determine does not depend upon which faction received the majority vote within the particular church at the time of the schism. | |
| 16 | The Constitution of PCUSA, to which the Kirk of the Hills, a particular church while holding the interests subjected itself, requires that the interests are to be held by the Kirk of the Hills, or its corporation, as trustee for the use and benefit of PCUSA. Specifically, from 1981 to this day the Constitution of the PCUSA has provided that:
All property held by or for a particular church, a presbyter, a synod, the General Assembly, or the Presbyterian Church (U.S.A.), whether legal title is lodged in a corporation, a trustee or trustees, or an unincorporated association, and whether the property is used in programs of a particular church or of a more inclusive governing body or retained for the production of income, is held in trust nevertheless for the use and benefit of the Presbyterian Church (U.S.A.). | |
| 17 | In 2006, certain officers of the PCUSA particular church Kirk of the Hills and certain officers of that particular church's corporation Kirk of the Hills, United Presbyterian, Tulsa, Oklahoma implemented a scheme to violate the PCUSA Constitution, which they previously had promised to uphold, by secretly and intentionally attempting to deprive the PCUSA and the EOP of their valuable property rights in the interests by placing the interests beyond the control of the EOP provided by the PCUSA Constitution, to breach the trust in the PCUSA Constitution imposed on the interests in favor of the PCUSA, and to avoid judicial action to restrain that violation. | |
| 18 | As part of that scheme, without prior notice to the EOP or the PCUSA, and in violation of the express terms of the PCUSA Constitution which they had promised to uphold, the local governing board or session of the Kirk of the Hills particular church unilaterally and secretly decided to sever its relationship with the PCUSA. | |
| 19 | As further part of that scheme, without prior notice to the presbytery or to the PCUSA for whom the Kirk of the Hills, United Presbyterian, Tulsa Oklahoma corporation as trustee held the interest in trust, that corporation secretly amended its articles of incorporation to change its name and sever its relationship with the PCUSA, to attempt to place the interests beyond the control of the EOP and to attempt to breach its trust obligations to PCUSA. | |
| Count I - Declaratory Judgment | ||
| 20 | A case and controversy exists between the plaintiff and the PCUSA concerning the rights of the PCUSA in the interests in the tracts. | |
| 21 | Pursuant to the PCUSA Constitution, which is entitled to recognition and enforcement by this Court, the PCUSA is entitled to a judgment declaring that, absent a determination by the EOP, that the Plaintiff is entitled to the interests, those interests are held in trust for the use and benefit of the PCUSA. | |
| Count II - Breach of Fiduciary Duty | ||
| 22 | The Plaintiff, The Kirk of the Hills as a particular church of the PCUSA, and their respective officers, all owed a fiduciary duty to the PCUSA and the EOP, to follow the PCUSA Constitution, to deal with the PCUSA and the EOP in good faith in connection with interests, to uphold the trust to which the interests are subject in favor of the PCUSA, to take no action to limit, impair, avoid or destroy the rights of the PCUSA and the EOP in the interests and to avoid self-dealing and unjust enrichment at the expense of the PCUSA and the EOP. | |
| 23 | The scheme to place the interests in the tracts beyond the control of the EOP and to breach the trust to which the interests are subject in favor of PCUSA constitute an intentional breach of fiduciary duty owned to the PCUSA by the plaintiff as trustee. | |
| 24 | By effectively transferring the trust property to itself by disassociating from the PCUSA and assuming sole control over the trust property and using it for Plaintiff's purposes and not for the purposes of the PCUSA, the Plaintiff has engaged in self-dealing and unjustly enriched itself. | |
| 25 | PCUSA is entitled to the imposition of a constructive trust on the trust property in its favor recognizing that the property is held in trust for the use and benefit of PCUSA | |
| Prayer For Relief | ||
| 1 | Granting this Defendant judgment on the Plaintiff's claims and dismissing the Plaintiff's Petition; | |
| 2 | Granting this Defendant judgment on its Counterclaim by declaring that the interests are to be held in trust for the use and benefit of the Defendant PCUSA and to the exclusion of any right, title, or interest of the Plaintiff; | |
| 3 | Imposing a constructive trust on the interests inf favor of the Defendant PCUSA, determining that the Plaintiff holds the interests as a trustee in trust for the Defendant PCUSA, and holding the Plaintiff responsible for rent and any and all damages to and diminution in value of the interests since Plaintiff's disassociation from the PCUSA; | |
| 4 | Requiring Plaintiff to unconditionally convey to PCUSA or at PCUSA's written direction, one of the corporations under its control all of Plaintiff's right, title, and interest in the interests; and | |
| 5 | Awarding to the Defendant PCUSA all other relief at law or in equity to which it is entitled, including to a reasonable attorneys' fee and costs. |