                 IN THE SUPREME COURT OF TENNESSEE
                             AT JACKSON
                                  April 5, 2017 Session

        CHURCH OF GOD IN CHRIST, INC., ET AL. v. L. M. HALEY
                    MINISTRIES, INC., ET AL.

                   Appeal by Permission from the Court of Appeals
                         Chancery Court for Fayette County
                    No. 15815 Martha B. Brasfield, Chancellor
                      ___________________________________

              No. W2015-00509-SC-R11-CV – Filed September 21, 2017
                     ___________________________________


We granted this appeal to determine whether the Court of Appeals properly affirmed the
trial court’s decision dismissing this lawsuit involving a dispute over the right to use and
control church property for lack of subject matter jurisdiction based on the ecclesiastical
abstention doctrine. This doctrine derives from the First Amendment to the United States
Constitution and prohibits civil courts from resolving church disputes on the basis of
religious doctrine and practice. We conclude that the ecclesiastical abstention doctrine
does not apply in this lawsuit. Accordingly, the judgment of the Court of Appeals
affirming the trial court’s dismissal is reversed. Furthermore, we conclude that the
undisputed facts establish that the plaintiffs are entitled to summary judgment, and we
remand this matter to the trial court for any other further proceedings and orders that may
be necessary to afford the plaintiffs possession and control of the disputed church real
property and to address the plaintiffs’ requests for an accounting and control of the
disputed church personal property.


   Tenn. R. App. P. 11 Appeal by Permission; Judgment of the Court of Appeals
                           Reversed; Case Remanded

CORNELIA A. CLARK, J., delivered the opinion of the court, in which JEFFREY S. BIVINS,
C.J., SHARON G. LEE, and ROGER A. PAGE, JJ., joined. HOLLY KIRBY, J., filed a
concurring opinion.

Darrell James O’Neal, Memphis, Tennessee, for the appellants, Church of God in Christ,
Inc., Bishop David A. Hall, Gospel Center Temple Church of God in Christ, and Gospel
Temple Church of God in Christ.
Robert L.J. Spence, Jr., Bryan M. Meredith, and Veronica F. Coleman-Davis, Memphis,
Tennessee, for the appellees, L. M. Haley Ministries, Inc., Gospel Center Temple Church
Moscow, Inc., Lonnie M. Haley, III, Jeremiah R. Haley, Ulysses C. Polk, Barry C.
Turner, Milton Holt, Sr., and Erskine J. Murphy.


                                               OPINION

                            I. Factual and Procedural Background

       The Church of God in Christ, Incorporated (“COGIC”) is a national not-for-profit
religious corporation established on December 12, 1922, under the laws of Tennessee,
with its principal business office located in Memphis. COGIC has adopted a hierarchical
structure of governance for its member churches.1 The COGIC constitution, which
provides “for the civil and ecclesiastical structure of the church together with laws, rules,
and regulations for the entire church, including [local churches]” is compiled in The
Official Manual.2 Pursuant to these governing principles, COGIC is divided into
Ecclesiastical Jurisdictions, and a Jurisdictional Bishop presides over each Ecclesiastical
Jurisdiction. The Official Manual declares that “[t]he Pastor of the local church shall be
appointed by the Jurisdictional Bishop of the Ecclesiastical Jurisdiction of the Church.”
This provision also states: “All vacancies that occur in the pastorate of the local church
shall be filled by the Jurisdictional Bishop. The supervision and management of the
church shall remain with the Jurisdictional Bishop or his designee until such time as a
pastor has been appointed to fill such vacancy.”

      According to the allegations of the second amended complaint, Gospel Center
Temple COGIC (“Temple COGIC”), located at 16885 Highway 57, Moscow, Fayette
County, Tennessee, was founded “many years ago.” At the time of its founding, Temple
COGIC “assumed the vows of membership with [COGIC] and declared it[s] willingness
to submit to and abide by the government of [COGIC],” including The Official Manual.

        1
         See Church of God in Christ, Inc. v. Middle City Church of God in Christ, 774 S.W.2d 950, 951
(Tenn. Ct. App. 1989) (stating that COGIC local churches operate as part of a “connectional system”);
Convention of Protestant Episcopal Church in Diocese of Tenn. v. Rector, Wardens, & Vestrymen of
Saint Andrew’s Parish, No. M2010-01474-COA-R3-CV, 2012 WL 1454846, at *20 n.16 (Tenn. Ct. App.
Apr. 25, 2012) [hereinafter Saint Andrew’s] (stating that “connectional” and “hierarchical” mean the
same thing).

        2
          The second amended complaint, from which this appeal arises, states that “The Official Manual,
as amended, is incorporated herein as if set forth in its entirety,” but The Official Manual actually is not
included in the record on appeal. Nevertheless, the relevant provisions of The Official Manual are quoted
in the second amended complaint. The parties do not dispute the accuracy of these quotations, and we
will accept these quotations as accurate for purposes of this appeal.


                                                   -2-
In return, COGIC issued Temple COGIC “[a] certificate of membership”3 and assigned
Temple COGIC to the Tennessee Headquarters Ecclesiastical Jurisdiction (“THEJ”).

       L. M. Haley, Jr. founded Temple COGIC and served as its duly appointed pastor
until his death on October 10, 2009. Thereafter the Jurisdictional Bishop for THEJ,
Bishop J.O. Patterson, Jr., “declined to name a pastor and temporarily assumed the
pastorship of [Temple COGIC],” as authorized by The Official Manual.4

       Bishop Patterson died in June 2011, and Bishop David A. Hall thereafter was
appointed Jurisdictional Bishop for THEJ. Like his predecessor, Bishop Hall chose to
serve as pastor of Temple COGIC rather than appoint someone else to the position.
Unfortunately, not everyone at Temple COGIC was satisfied with Bishop Hall’s decision,
and in October 2011, those dissatisfied with the decision sought the advice of a lawyer,
also an elder in COGIC, about their options. In a letter included in the record on appeal,
this attorney summarized the advice he had given, explaining that the members of
Temple COGIC had an “absolute right to vote to move to another [Ecclesiastical]
[J]urisdiction” but cautioned that, “if they [were] to remain in COGIC[,] they must follow
the church’s polity, including accepting the Bishop’s appointment of Pastors.” He
explained that, “if they desire[ed] to fellowship with another [Ecclesiastical]
[J]urisdiction [of COGIC], they should present their petition to the General Board
requesting a vote of the membership.”

       Thereafter, the General Secretary of COGIC received a letter advising that a
majority of the members of Temple COGIC had voted to transfer to another
Ecclesiastical Jurisdiction.5 The General Secretary responded with a letter explaining
that the election would not be recognized as valid because it had not been conducted in
compliance with COGIC procedures, contained in The Official Manual, for obtaining a
transfer to another Ecclesiastical Jurisdiction. The General Secretary provided a copy of
the applicable procedures and invited the recipients of the letter to contact his office



       3
           Temple COGIC’s certificate of membership is not included in the record on appeal.

       4
           According to allegations in the second amended complaint, Bishop Patterson exercised this
option “because of a conflict between various members of the family of L. M. Haley, Jr., over which of
them should be named pastor of [Temple COGIC].” The rationale for Bishop Patterson’s decision is not
relevant to the issues in this appeal.

       5
          The second amended complaint alleges that notice of the election was provided only to Temple
COGIC members favoring a transfer and that members who were believed to oppose a transfer were not
informed of the election or given an opportunity to vote on the issue. Any dispute regarding these
allegations is not relevant to the dispositive issues in this appeal.


                                                  -3-
should additional information or assistance be needed. The General Secretary did not
receive any additional correspondence regarding a transfer.

       However, on December 16, 2011, a corporate charter was filed with the Tennessee
Secretary of State’s Office creating Gospel Center Temple Church Moscow, Inc.
(“Moscow Church”). The Moscow Church’s corporate charter listed its business address
as 16885 Highway 57, Moscow, Fayette County, Tennessee, the same address as Temple
COGIC. Neither the corporate charter nor any other document in the record on appeal
indicates that the Moscow Church was organized as a member church of COGIC.
Another Tennessee corporation, L. M. Haley Ministries, Incorporated (“L. M. Haley
Ministries”), had been formed previously by the founding pastor of Temple COGIC and
had also listed 16885 Highway 57, Moscow, Fayette County, Tennessee, as its registered
office and principal place of business. Nevertheless, according to a September 17, 2000
deed, the grantees for the real property located at this address were Temple COGIC, Ella
Mary Cox, Milton E. Holt, Sr., Lonnie M. Haley, Janice Murphy, John W. Arnett, and
Erskine J. Murphy, Trustees for the use and benefit of Temple COGIC [and] its assigns.
Neither the Moscow Church nor L. M. Haley Ministries was listed on the deed as having
any interest in the property. The September 17, 2000 deed also did not expressly list
COGIC as having an interest in the property, but The Official Manual includes the
following provision:

       Real estate or other property may be acquired by purchase, gift[,] devise, or
       otherwise, by local churches. Where real or personal property is acquired
       by deed, the instrument of conveyance shall contain the following clause, to
       wit;

            The said property is held in trust for the use and benefit of the
            members of the Church of God in Christ with National
            Headquarters in the City of Memphis, Shelby County, Tennessee,
            and subject to the Charter, Constitution, Laws and Doctrines of
            said Church, now in full force and effect, or as they may be
            hereafter amended, changed or modifies [sic] by the General
            Assembly of said Church.

This same language is repeated, verbatim, in another part of The Official Manual.6




       6
          According to the second amended complaint, the quoted text appears in Part I, article III,
section D.9 and is repeated verbatim in Part III, section A.8.


                                                -4-
       Despite the language of the September 17, 2000 deed and that of The Official
Manual, on December 29, 2011, Barry C. Turner, Erskine J. Murphy, and Milton Holt,
Sr., “holding themselves out to be the sole Trustees of [Temple COGIC] executed and
recorded a Quit Claim Deed attempting to transfer” the real property located at 16885
Highway 57, Moscow, Fayette County, Tennessee to the Moscow Church. On January 2,
2012, four days after the quit claim deed was executed, Bishop Hall attempted to hold
services at Temple COGIC, but he was barred from entering the premises. A Fayette
County Sheriff’s Deputy allegedly called in by those associated with the Moscow Church
advised Bishop Hall “that he should either leave or be arrested.”

        A month later, on February 2, 2012, this lawsuit was filed. Bishop Hall filed the
initial complaint, individually and on behalf of Temple COGIC. After the complaint was
amended once, the defense filed a motion to dismiss. The trial court concluded that
Bishop Hall may have lacked standing to file the lawsuit on his own, but it granted him
permission to file a second amended complaint. The second amended complaint, from
which this appeal arises, was filed on July 29, 2013, by COGIC, Bishop Hall,
individually and on behalf of Temple COGIC, and Temple COGIC, by and through its
duly appointed trustee, John Arnett (collectively “the Plaintiffs”). Named as defendants
in the second amended complaint were: (1) L. M. Haley Ministries; (2) the Moscow
Church; (3) L. M. Haley, III, (4) Jeremiah R. Haley; (5) Ulysses C. Polk; (6) Barry C.
Turner; (7) Milton Holt, Sr.; and (8) Erskine J. Murphy (collectively “the Defendants”).

       In the second amended complaint, the Plaintiffs alleged that the Moscow Church
and L. M. Haley Ministries, by and through their directors, had “unlawfully assumed
control of [Temple COGIC’s] real property.” As factual support for this assertion, the
Plaintiffs alleged that Bishop Hall, Temple COGIC’s duly appointed pastor and
Jurisdictional Bishop, had been barred from entering Temple COGIC on threat of arrest
by a Fayette County Sheriff’s Deputy. The Plaintiffs also alleged that one of the
Defendants, Erskine J. Murphy, had removed church documents from Temple COGIC,
including the checkbook and financial records, and that, by doing so, had deprived
Bishop Hall of access to materials needed to fulfill his responsibility to administer and
supervise Temple COGIC.

       As the basis for their claim to the real property and to control of the bank
accounts, records, and other personal property of Temple COGIC, the Plaintiffs pointed
to the language of the September 17, 2000 deed and that of The Official Manual. The
Plaintiffs asked the trial court: (1) to order the Defendants “to remove themselves from
control” of Temple COGIC and “restore” Temple COGIC and its property and funds to
the Plaintiffs; (2) to declare the December 29, 2011 quit claim deed to the Moscow
Church null and void as a fraudulent transfer; (3) to restructure the September 17, 2000
deed to reflect that the real property is held in trust for the use and benefit of COGIC,
with national headquarters in Memphis, Tennessee, and subject to the Charter,
Constitution, Laws and Doctrines of COGIC, “now in full force and effect, or as they
                                          -5-
may be hereafter amended, changed or modified by the [COGIC] General Assembly”; (4)
to order the Defendants to account for all income and expenditures from January 1, 2011
to the present; and (5) to issue a temporary restraining order preventing the Defendants
from using Temple COGIC funds pending resolution of the lawsuit.

       In their answers to the second amended complaint, the Defendants denied that
Bishop Hall was the lawful pastor of Temple COGIC.7 The Defendants also moved to
dismiss the second amended complaint for failure to state a claim upon which relief can
be granted and for lack of subject matter jurisdiction, arguing that the Plaintiffs were
asking the trial court “to exercise jurisdiction over a purely ecclesiastical and religious
dispute as to who shall be the church’s pastor and thereby control the church’s property
and funds.”

       On December 6, 2013, the Plaintiffs filed a memorandum of law in opposition to
the Defendants’ motions to dismiss.8 The Plaintiffs reiterated the allegations of the
second amended complaint and also provided a copy of a decision handed down on
November 23, 2013, by an Ecclesiastical Council of COGIC. The memorandum of law
stated that, in February 2013, certain members of Temple COGIC brought charges
against several other members of the congregation, including some of the Defendants in
this lawsuit, alleging that these members were violating COGIC polity and unlawfully
exercising control over Temple COGIC property.9 An internal COGIC investigation
ensued, which culminated in a trial before the Ecclesiastical Council on November 23,
2013. Those charged were notified of the trial but did not appear. After the hearing, at
which sworn complaints and testimony were presented, the Ecclesiastical Council
rendered its decision, finding that the Defendants “ha[d] ignored the requests and
admonitions of [COGIC officials] to follow the polity of [COGIC]”; were operating
Temple COGIC in violation of the COGIC constitution and The Official Manual; had

        7
          The Moscow Church, Jeremiah R. Haley, Ulysses C. Polk, Barry C. Turner, Milton Holt, Sr.,
and Erskine J. Murphy jointly filed an answer by and through counsel on August 13, 2013. L. M. Haley
Ministries and Lonnie M. Haley, III, jointly filed an answer through counsel on August 21, 2013.

        8
            On November 14, 2013, the Plaintiffs filed a motion asking the trial court to stay the
proceedings until after “an ecclesiastical trial to resolve the issues in the instant case involving property
rights, local church leadership, and local church management.” By a separate motion, the Plaintiffs asked
the trial court to refer the case to mediation. The Defendants filed a response opposing the reference to
mediation. If the trial court ruled on these motions, the trial court’s rulings are not included in the record
on appeal.

        9
           According to the Ecclesiastical Council’s decision, the complainants were Bishop Hall on
behalf of COGIC and Temple COGIC, and the respondents were Temple COGIC, Jerry E. Murphy, Joyce
A. Murphy, Barry C. Turner, Clementine Turner, Barry D. Turner, Milton Holt, Sr., Annie Holt,
Elizabeth Houston-Arnett, and Randy Arnett.


                                                    -6-
refused to acknowledge Bishop Hall, who was their duly appointed Jurisdictional Bishop
and pastor; had caused Bishop Hall to be physically removed from church services at the
Temple COGIC premises; had interfered with Bishop Hall’s lawful attempt to manage
the bank accounts of Temple COGIC and persuaded the bank not to place those accounts
under his control; had unlawfully attempted to transfer ownership of Temple COGIC
property; and had improperly called a vote to transfer Ecclesiastical Jurisdictions. Based
on these findings, the Ecclesiastical Council found those charged guilty of certain
offenses, and excommunicated nine persons from membership in COGIC and Temple
COGIC, including two of the Defendants in this lawsuit—Barry C. Turner and Milton
Holt, Sr. The Ecclesiastical Council ordered the reorganization of Temple COGIC under
the pastoral leadership of Bishop Hall, directed that Temple COGIC’s “personal property
. . . , including cash, bank accounts, records and the like” be turned over to Bishop Hall,
to hold in trust for Temple COGIC, and directed that Temple COGIC’s real property be
held in trust in accordance with The Official Manual.

       In a December 6, 2013 memorandum of law opposing the Defendants’ motion to
dismiss, the Plaintiffs argued that the Defendants, by refusing to comply with the
November 23, 2013 Ecclesiastical Council ruling, had forced the Plaintiffs to seek civil
remedies “to resolve this impasse over property rights.” The Plaintiffs acknowledged the
ecclesiastical abstention doctrine, but they asserted that it does not apply here because
this case involves a church property dispute over which civil courts have jurisdiction, not
a dispute about ecclesiastical matters.

       On February 3, 2014, the Defendants renewed their motion to dismiss the second
amended complaint, relying on materials previously submitted. The Defendants asserted,
despite the decision of the Ecclesiastical Council, that “the gravamen of this case still
requires the [c]ourt to engage in a review of ecclesiastical doctrine and determine who
should pastor and manage [Temple COGIC] simply to control the church’s personal and
real property.”

        On May 7, 2014, the Plaintiffs moved for summary judgment and alternatively
asked the court “to make such findings of fact and conclusions as is proper under the
premises.” Defendants apparently did not respond to the motion for summary judgment,
or if they did, the response is not included in the record on appeal.

       On June 24, 2014, the Plaintiffs filed a supplement to their original memorandum
of law in opposition to the Defendants’ motions to dismiss. The Plaintiffs adopted and
incorporated by reference affidavits from: (1) Bishop Hall; (2) COGIC’s General
Counsel; and (3) COGIC’s General Secretary, all of which had previously been
submitted. In his affidavit, Bishop Hall essentially reiterated the allegations of the
second amended complaint and described the Ecclesiastical Council’s ruling. In his
affidavit, COGIC’s General Counsel stated, among other things, that Bishop Hall “was
duly appointed as Jurisdictional Bishop of the Tennessee Headquarters Ecclesiastical
                                           -7-
Jurisdiction of [COGIC] of which [Temple COGIC] is a member church.” The General
Counsel also stated that, at the time of Bishop Hall’s appointment, no pastor had been
appointed to Temple COGIC, and therefore, Bishop Hall became the pastor of Temple
COGIC upon his appointment as Jurisdictional Bishop, pursuant to The Official Manual.
The General Counsel stated that “there is no ecclesiastical controversy concerning the
leadership and management of [Temple COGIC]–Bishop Hall is the Pastor of [Temple
COGIC] according to the COGIC Constitution.” Finally, the General Secretary’s
affidavit stated that Bishop Hall was the duly appointed Jurisdictional Bishop for Temple
COGIC’s Ecclesiastical Jurisdiction and that, under COGIC’s constitution and polity,
Bishop Hall became the pastor of Temple COGIC in November 2011, “upon being
consecrated as Jurisdictional Bishop.” The General Secretary also stated that the
November 23, 2013 ruling of the Ecclesiastical Council had not been appealed and, as a
result, had become “final and binding upon [Temple COGIC] and the Charge[d] Parties
according to the COGIC Constitution.”

        On February 18, 2015, the trial court dismissed the Plaintiffs’ motion for summary
judgment without a hearing and without requiring the Defendants to respond, explaining
that the Plaintiffs had failed to set out “a separate and concise statement of material facts
as to which the moving party contends there is no genuine issue for trial,” as required by
Rule 56.03 of the Tennessee Rules of Civil Procedure. The trial court granted the
Defendants’ motions to dismiss the second amended complaint. In doing so, the trial
court emphasized that its ruling was based on the allegations of the pleadings alone, and
that it had not considered any of the other materials the parties had submitted. The trial
court explained the basis for its decision to grant the motion to dismiss as follows:

               The Court finds that this lawsuit deals with ecclesiastical issues.
       The Plaintiffs have been very careful to couch their lawsuit and prayer for
       relief by alleging that this lawsuit concerns property rights. However, this
       lawsuit is actually about control, and who makes the decision concerning
       the control of the church and the church funds. These are denominational
       and ecclesiastical issues. The Court [] does not have jurisdiction to declare
       the Quit Claim Deed to [the Moscow Church] void or to restructure the
       deed at the present time because the congregation has not withdrawn from
       the COGIC denomination.

        The Plaintiffs appealed. In a divided decision, the Court of Appeals affirmed the
trial court’s dismissal of the second amended complaint. Church of God in Christ, Inc. et
al. v. L. M. Haley Ministries, Inc. et al., No. W2015-00509-COA-R3-CV, 2016 WL
325499, at *11 (Tenn. Ct. App. Jan. 27, 2016), perm. app. granted (Tenn. Aug. 18, 2016).
On the basis of the ecclesiastical abstention doctrine, the majority “decline[d] to interfere
with this intra-church dispute over the creation of a trust for COGIC of [Temple
COGIC’s] real property,” explaining that there had been “no showing that [Temple
COGIC] has in any way terminated its affiliation with COGIC.” Id. at *9. The majority
                                            -8-
also affirmed dismissal of the personal property claim on the basis of the ecclesiastical
abstention doctrine, explaining that civil courts have “no subject matter jurisdiction to
declare that Bishop Hall is the lawful leader of [Temple COGIC], imbued with all
attendant authority.” Id. at *10. One judge dissented, arguing that the ecclesiastical
abstention doctrine does not apply in this case, because “resolution of the dispute among
the parties is not dependent on the trial court’s ruling on matters of conscience or
religious doctrine or polity.” Id. at *11 (Goldin, J., dissenting).

       The Defendants filed an application for permission to appeal pursuant to Rule 11
of the Tennessee Rules of Appellate Procedure. We granted the application, and in the
order doing so, directed the parties to brief and argue the following issues, in addition to
those raised in the Rule 11 application:

       1. Whether, in light of the decision of the United States Supreme Court in
       Hosanna-Tabor Evangelical Lutheran Church and School v. Equal
       Employment Opportunity Commission, [565 U.S. 171] (2012), this Court
       should no longer treat the ecclesiastical abstention doctrine as a bar to
       subject matter jurisdiction, and instead should treat the doctrine as an
       affirmative defense which may be raised by a motion to dismiss for failure
       to state a claim upon which relief can be granted pursuant to Rule 12.02(6)
       of the Tennessee Rules of Civil Procedure.

       2. If the answer to issue 1 is in the affirmative, whether the record
       establishes that the ecclesiastical abstention doctrine applies, such that [the
       P]laintiffs have failed to state a claim upon which relief can be granted.

       3. If the answer to issue 1 is in the negative, whether this Court should
       abandon the analytical distinction between facial and factual challenges to
       subject matter jurisdiction, see Redwing v. Catholic Bishop for the Diocese
       of Memphis, 363 S.W.3d 436, 445-46 (Tenn. 2012); and if so, whether in
       the absence of that analytical distinction the record establishes that the
       ecclesiastical abstention doctrine applies and that the trial court, therefore,
       lacked subject matter jurisdiction.

Church of God in Christ, Inc. et al. v. L. M. Haley Ministries, Inc. et al., No. W2015-
00509-SC-R11-CV (Tenn. Aug. 18, 2016) (order granting Tennessee Rule of Appellate
Procedure 11 application). To answer the questions presented in this appeal, we must
review the principles that courts have developed and applied, albeit not always
consistently, to resolve church property disputes.




                                            -9-
                                                II. Analysis

                        A. The Ecclesiastical Abstention Doctrine:
                 Subject Matter Jurisdictional Bar or Affirmative Defense?

        The ecclesiastical abstention doctrine, also commonly known as the “church
autonomy doctrine,” Redwing, 363 S.W.3d at 443 n.3, precludes civil courts in this
country from adjudicating “questions of discipline, or of faith, or ecclesiastical rule,
custom, or law” or church polity, or the internal governance of religious organizations.
Watson v. Jones, 80 U.S. 679, 727 (1871); see also Redwing, 363 S.W.3d at 448; Nance
v. Busby, 18 S.W. 874, 881 (Tenn. 1892). This doctrine is now clearly understood as
deriving from the Religion Clauses of the First Amendment to the United States
Constitution.10 See Hosanna-Tabor Evangelical Lutheran Church and Sch. v. E.E.O.C.,
565 U.S. 171, 186 (2012) [hereinafter Hosanna-Tabor]; Kedroff v. Saint Nicholas
Cathedral of Russian Orthodox Church in N. Am., 344 U.S. 94, 115-16 (1952). We
asked the parties to address whether the ecclesiastical abstention doctrine operates as a
bar to subject matter jurisdiction or is an affirmative defense. The proper characterization
of this concept is important because subject matter jurisdiction refers to the power of a
court to adjudicate a controversy. Word v. Metro Air Servs., Inc., 377 S.W.3d 671, 674
(Tenn. 2012). “Whether subject matter jurisdiction exists depends on the nature of the
cause of action and the relief sought.” Id. (citing Landers v. Jones, 872 S.W.2d 674, 675
(Tenn. 1994)). A challenge to subject matter jurisdiction cannot be waived and may be
raised at any time. Johnson v. Hopkins, 432 S.W.3d 840, 843-44 (Tenn. 2013); In re
Estate of Brown, 402 S.W.3d 193, 199 (Tenn. 2013). In contrast, “[a]n affirmative
defense is one that wholly or partly avoids the cause of action asserted by the preceding
pleading by new allegations that admit part or all of the cause of action, but avoids
liability because of a legally sufficient excuse, justification, or other matter negating the
alleged breach or wrong.” Thompson, Breeding, Dunn, Creswell & Sparks v. Bowlin,
765 S.W.2d 743, 744 (Tenn. Ct. App. 1987) (quoting Lawrence A. Pivnick, Tennessee
Circuit Court Practice § 12: 4 (2nd Ed. 1986)); see also Tenn. R. Civ. P. 8.03. An
affirmative defense generally is deemed waived unless timely raised in an answer or
responsive pleading. See Tenn. R. Civ. P. 12.08; Pratcher v. Methodist Healthcare
Memphis Hosps., 407 S.W.3d 727, 735 (Tenn. 2013) (discussing affirmative defenses).

      We asked the parties to brief this question because, in 2012, the United States
Supreme Court held that another doctrine derived from the Religion Clauses of the First
Amendment—the ministerial exception—constitutes an affirmative defense, not a subject

       10
           The First Amendment provides, in relevant part, that “Congress shall make no law respecting
an establishment of religion, or prohibiting the free exercise thereof.” U.S. Const. amend. I. The First
Amendment is applicable to the States through the Fourteenth Amendment. Cantwell v. Connecticut, 310
U.S. 296, 303 (1940).


                                                 - 10 -
matter jurisdictional bar. Hosanna-Tabor, 565 U.S. at 195 n.4. In Hosanna-Tabor, the
Supreme Court explained that the ministerial exception precludes applying federal civil
rights laws to a religious institution when applying those laws would interfere with a
religious organization’s determination of who may serve as its ministers. Id. at 188.
Settling a disagreement among the lower courts, the Supreme Court held that the
ministerial exception functions as an affirmative defense, not a jurisdictional bar, because
civil courts have subject matter jurisdiction over claims based on federal civil rights
statutes. Id. at 195 n.4. The ministerial exception does not deprive civil courts of this
jurisdiction, explained the Supreme Court, but raises the question of whether the plaintiff
in such a case is entitled to relief on the claim. Id.

        Notably, however, the Supreme Court did not address the ecclesiastical abstention
doctrine in Hosanna-Tabor. Although both concepts derive from the First Amendment,
the ecclesiastical abstention doctrine predates the ministerial exception by almost a
century. Compare Watson, 80 U.S. at 733 (recognizing the ecclesiastical abstention
doctrine in 1871) with Hosanna-Tabor, 565 U.S. at 188 (stating that federal circuit courts
of appeal had recognized the ministerial exception after passage of Title VII of the Civil
Rights Act of 1964). The Supreme Court itself has described the ecclesiastical abstention
doctrine in a manner that suggests it constitutes a subject matter jurisdictional bar, where
applicable. Specifically, the Supreme Court stated that civil courts exercise “no
jurisdiction” over a matter “strictly and purely ecclesiastical in its character.” Watson, 80
U.S. at 733. The Supreme Court defined ecclesiastical disputes as matters concerning
“theological controversy, church discipline, ecclesiastical government, or the conformity
of the members of the church to the standard of morals required of them.” Id. at 733; see
also Serbian E. Orthodox Diocese for U.S. and Can. v. Milivojevich, 426 U.S. 696, 713-
14 (1976) (quoting Watson, 80 U.S. at 733). Likewise, this Court “strongly embraced the
ecclesiastical abstention doctrine” just twenty years after Watson, Redwing, 363 S.W.3d
at 448-49 (quoting Nance, 18 S.W. at 879), and has applied the ecclesiastical abstention
doctrine as a subject matter jurisdictional bar precluding judicial review of ecclesiastical
matters, see, e.g., Mason v. Winstead, 265 S.W.2d 561, 563 (Tenn. 1954) (removal of a
minister); Travers v. Abbey, 58 S.W. 247, 247-48 (Tenn. 1900) (removal of a minister);
see also Redwing, 363 S.W.3d at 445 (treating the assertion of the ecclesiastical
abstention doctrine as a challenge to the court’s subject matter jurisdiction); Bentley v.
Shanks, 348 S.W.2d 900, 903 (Tenn. Ct. App. 1960) (“[C]ourts have no ecclesiastic
jurisdiction, and do not pass upon questions of faith, religion, or conscience.”).

       A recent example of a Tennessee decision applying the ecclesiastical abstention
doctrine as a subject matter jurisdictional bar is Anderson v. Watchtower Bible and Tract
Soc’y of N.Y., Inc., No. M2004-01066-COA-R9-CV, 2007 WL 161035, at *1 (Tenn. Ct.
App. Jan. 19, 2007). There, expelled members of a religious organization brought a
lawsuit against the religious organization and its leaders seeking money damages for their
expulsion. The religious organization moved to dismiss based on the ecclesiastical
abstention doctrine. The trial court denied the motion, and the Court of Appeals
                                            - 11 -
reversed, holding that the plaintiff’s claims were “barred by the First Amendment’s
protection of purely religious matters from interference by secular courts.” Id.

       No language in Hosanna-Tabor alters the well-established principle stated in
Watson that civil courts have no jurisdiction over matters purely ecclesiastical in
character. In the absence of any express language overruling Watson, and given that
Hosanna-Tabor cites Watson with approval, we decline to interpret Hosanna-Tabor as
abrogating Watson’s characterization of the ecclesiastical abstention doctrine as a subject
matter jurisdictional bar. Hosanna-Tabor, 565 U.S. at 186-87.11 We therefore hold that,
until and unless the United States Supreme Court declares otherwise, the ecclesiastical
abstention doctrine, where it applies, functions as a subject matter jurisdictional bar that
precludes civil courts from adjudicating disputes that are “strictly and purely

        11
            Unlike Justice Kirby, we do not view the United States Supreme Courtʼs decision in Gonzalez
v. Roman Catholic Archbishop of Manila, 280 U.S. 1 (1929) as relevant to the issue of whether the
ecclesiastical abstention doctrine is a subject matter jurisdictional bar. The United States Supreme Court
has cited Gonzalez only four times, and cited it most recently when it overruled Gonzalez. See
Milivojevich, 426 U.S. 696 (1976). In Milivojevich, the Supreme Court reiterated that “Watson had left
civil courts no role to play in reviewing ecclesiastical decisions during the course of resolving church
property disputes[.]” Id. at 712. The Court stated that Gonzalez had included dictum about exceptions to
the rule of Watson and had “adverted to the possibility of marginal civil court review” of decisions of
ecclesiastical tribunals. Id. The Milvojevich Court rejected the Gonzalez dictum, explaining that none of
its prior decisions had “given concrete content to or applied” the Gonzalez exception allowing review of
an ecclesiastical court’s decision for arbitrariness. Id. at 712-13. Thus we read Milivojevich as
rejecting Gonzalez and reaffirming the rule announced in Watson that civil courts have no authority to
resolve ecclesiastical disputes.

         We also do not share Justice Kirby’s belief that the Supreme Court’s citation of Bryce v.
Episcopal Church in the Diocese of Colorado, 289 F.3d 648, 654 (10th Cir. 2002) in footnote four
of Hosanna-Tabor to illustrate the circuit split on the proper characterization of the ministerial exception
in some way indicates that the Supreme Court views the ecclesiastical abstention doctrine as an
affirmative defense. To the contrary, Bryce involved an action brought by a former youth minister
alleging sexual harassment in violation of federal civil rights laws based on statements the religious
organization made about his homosexual relationship. Factually and legally, Bryce involved the
ministerial exception only, and the Tenth Circuit held that the ministerial exception is an affirmative
defense. 289 F.3d at 654. But the proper characterization of the ecclesiastical abstention doctrine was not
an issue in Bryce.

        Because the ecclesiastical abstention doctrine ultimately does not apply in this property dispute
case, our conclusion that the doctrine remains a subject matter jurisdictional bar is not controlling of the
outcome of this appeal. We will not hesitate to revisit this issue in an appropriate case if the United States
Supreme Court eventually renders a decision that calls into question our conclusion that the doctrine
remains a subject matter jurisdictional bar.




                                                    - 12 -
ecclesiastical” in character and which concern “theological controversy, church
discipline, ecclesiastical government, or the conformity of the members of the church to
the standard of morals required of them.” Watson, 80 U.S. at 733. As such, the
ecclesiastical abstention doctrine may be raised at any time as a basis for dismissal of a
lawsuit.

       That being said, however, the ecclesiastical abstention doctrine certainly does not
apply in every legal dispute involving religious organizations. As this Court explained in
Redwing in refusing to dismiss the tort claims there alleged against the religious
organization, “the ecclesiastical abstention doctrine does not necessarily immunize
religious institutions from all claims for damages based on negligent hiring, supervision,
or retention. Tennessee’s courts may address these claims, as long as they can do so
using neutral principles of law and can refrain from resolving religious disputes and
from relying on religious doctrine.” 363 S.W.3d at 452 (emphasis added).

        The same is true of church property disputes. Like the other causes of action
identified in Redwing, the ecclesiastical abstention doctrine does not require dismissal of
every church property dispute. As the Supreme Court has emphasized:

       There can be little doubt about the general authority of civil courts to
       resolve [disputes about the control and ownership of church property]. The
       State has an obvious and legitimate interest in the peaceful resolution of
       property disputes, and in providing a civil forum where the ownership of
       property can be determined conclusively.

Jones v. Wolf, 443 U.S. 595, 602 (1979). Nevertheless, the First Amendment, through
the ecclesiastical abstention doctrine, “severely circumscribes the role that civil courts
may play in resolving church property disputes.” Presbyterian Church in U.S. v. Mary
Elizabeth Blue Hull Mem’l Presbyterian Church, 393 U.S. 440, 449 (1969) [hereinafter
Blue Hull]. Specifically, civil courts are prohibited “from resolving church property
disputes on the basis of religious doctrine and practice,” Jones, 443 U.S. at 602
(emphasis added), and when resolving such disputes, must “defer to the resolution of
issues of religious doctrine or polity by the highest court of a hierarchical church
organization.” Id. (citing Milivojevich, 426 U.S. at 724-25). Our task here then is to
determine whether this church property dispute may be decided without resolving
questions of religious doctrine, polity, or practice. If not, then the ecclesiastical
abstention doctrine would function as a subject matter jurisdictional bar precluding our
resolution of this property dispute.




                                           - 13 -
          B. Facial Versus Factual Challenges to Subject Matter Jurisdiction

        Before determining whether the ecclesiastical abstention doctrine applies,
however, we must first decide whether the distinction drawn in prior decisions between
facial and factual challenges to subject matter jurisdiction should be abandoned. In
Redwing, this Court addressed the distinction stating, “[l]itigants may take issue with a
court’s subject matter jurisdiction using either a facial challenge or a factual challenge.”
363 S.W.3d at 445. A facial challenge attacks the complaint itself and asserts that the
complaint, considered as a whole, fails to allege facts showing that the court has subject
matter jurisdiction to hear the case. Id. at 445-46. When evaluating a facial challenge to
subject matter jurisdiction, a court limits its consideration to the factual allegations of the
complaint and considers nothing else. Id. The court presumes the factual allegations of
the complaint are true. If these factual allegations establish a basis for the court’s
exercise of subject matter jurisdiction, then the court must uncritically accept those facts,
end its inquiry, and deny the motion to dismiss. Id.; see also Staats v. McKinnon, 206
S.W.3d 532, 542-43 (Tenn. Ct. App. 2006); Osborn v. United States, 918 F.2d 724, 729
n.6 (8th Cir. 1990). Thus, when evaluating facial challenges to subject matter
jurisdiction, courts are to utilize the familiar analytical framework that applies to motions
to dismiss for failure to state a claim. McKinnon, 206 S.W.3d at 543.

        In contrast, factual challenges to subject matter jurisdiction do not attack the
allegations of the complaint as insufficient. Id. at 543. Rather, a factual challenge admits
that the alleged facts, if true, would establish subject matter jurisdiction, but it attacks the
sufficiency of the evidence to prove the alleged jurisdictional facts. Redwing, 363
S.W.3d at 446; McKinnon, 206 S.W.3d at 543. When resolving a factual attack on
subject matter jurisdiction, a court may consider matters outside the pleadings, such as
affidavits or other documents. Anderson, 2007 WL 161035, at *32 n.23 (Tenn. Ct. App.
Jan. 19, 2007); see also Holt v. United States, 46 F.3d 1000, 1003 (10th Cir. 1995);
Osborn v. United States, 918 F.2d 724, 729 n.6 (8th Cir. 1990); Hutterville Hutterian
Brethren, Inc. v. Waldner, 791 N.W.2d 169, 174 (S.D. 2010); South v. Lujan, 336 P.3d
1000, 1003-1004 (N.M. Ct. App. 2014). Furthermore, motions challenging subject
matter jurisdiction are not converted to summary judgment motions when matters outside
the pleadings are considered or when disputes of material fact exist. Anderson, 2007 WL
161035, at *32 n.23; see also McKinnon, 206 S.W.3d at 543 (citing Chenault v. Walker,
36 S.W.3d 45, 55-56 (Tenn. 2001)). Rather, courts presented with such motions must
weigh the evidence, resolve any factual disputes, and determine whether subject matter
jurisdiction exists. Anderson, 2007 WL 161035, at *32 n.23; Hutterville Hutterian
Brethren, Inc., 791 N.W.2d at 175 (stating that, when a factual attack is mounted on
subject matter jurisdiction, “the court must also weigh the evidence and resolve disputed
issues of fact affecting the merits of the jurisdictional dispute”); Osborn, 918 F.2d at 729-
30 (agreeing with the rule adopted by a majority of the federal circuit courts of appeal
that, when a factual challenge to subject matter jurisdiction is mounted, the court may
resolve disputed issues of material fact and decide the merits of the jurisdictional issue);
                                             - 14 -
5B Charles A. Wright et al., Federal Practice and Procedure § 1350 & n.47 (3d ed. Supp.
2017) [hereinafter Federal Practice and Procedure]. The trial court may hold an
evidentiary hearing limited to the question of subject matter jurisdiction if necessary to
resolve jurisdictional factual disputes. Arbaugh v. Y&H Corp., 546 U.S. 500, 514 (2006)
(“[I]f subject-matter jurisdiction turns on contested facts, the trial judge may be
authorized to review the evidence and resolve the dispute on her own.”); see also Osborn,
918 F.2d at 730; Hutterville Hutterian Brethren, Inc., 791 N.W.2d at 175. Regardless of
the manner used, the plaintiff bears the burden of establishing that the court has subject
matter jurisdiction over the case. McKinnon, 206 S.W.3d at 543 (citing Chenault, 36
S.W.3d at 56).

       Having considered the relevant authorities, we decline to abolish the distinction
between facial and factual challenges to subject matter jurisdiction. This distinction has
been adopted by a majority of state and federal courts, 5B Federal Practice & Procedure
Civ. § 1350, and remains helpful in analyzing challenges to subject matter jurisdiction,
where it is applied properly.

        Unfortunately, the trial court failed to apply it properly in this case. Here, the
Defendants raised the ecclesiastical abstention doctrine in both a motion to dismiss for
lack of subject matter jurisdiction and a motion to dismiss for failure to state a claim for
relief. Tenn. R. Civ. P. 12.02 (1), (6). In dismissing the second amended complaint, the
trial court considered only the factual allegations of the pleadings and refused to consider
any of the other materials the parties submitted in support of and opposition to the
motion. The trial court erred by limiting its consideration to the factual allegations of the
complaint, rather than considering all the materials the parties submitted relevant to the
assertion that the ecclesiastical abstention doctrine bars resolution of this property
dispute. Here, the Defendants mounted a factual challenge to subject matter jurisdiction,
and the Plaintiffs attempted to satisfy their burden of establishing subject matter
jurisdiction by submitting materials showing that the alleged ecclesiastical question had
already been resolved by the highest judicatory of COGIC. The trial court should have
considered all of these materials when ruling on the Defendants’ motion to dismiss. This
analysis applies to motions alleging the ecclesiastical abstention doctrine as a
jurisdictional bar under Tennessee Rule of Civil Procedure 12.02(1), as well as to
motions brought under 12.02(6) alleging the ecclesiastical abstention doctrine as an
affirmative defense. In both circumstances, the trial court should consider all of the
materials provided on the subject, and not just the allegations of the complaint.




                                            - 15 -
       We need not remand this matter to the trial court, however, because, even
considering the additional party submissions, the material facts are not in dispute.12
Additionally, the parties were afforded the opportunity to present evidence and argument
in the trial court on these issues, and the parties have been afforded the opportunity to
brief and argue these issues on appeal.13 Given the record on appeal, this Court can as
easily determine whether the ecclesiastical abstention doctrine applies to the undisputed
facts as the trial court could, and our doing so is in the interest of judicial economy. See
Bishop & Diocese of Colo. v. Mote, 716 P.2d 85, 103 (Colo. 1986) (choosing to decide
the applicability of the ecclesiastical abstention doctrine rather than remand to the trial
court); Episcopal Church in Diocese of Conn. v. Gauss, 28 A.3d 302, 316-17 (Conn.
2011) (resolving the issue on the record rather than remanding to the trial court to do so).

                         C. The Ecclesiastical Abstention Doctrine &
                                 Church Property Disputes

        As already noted, civil courts have general authority to resolve church property
disputes and have “an obvious and legitimate interest in the peaceful resolution of
property disputes, and in providing a civil forum where the ownership of property can be
determined conclusively.” Jones, 443 U.S. at 602. A state may adopt “‘any one of
various approaches for settling church property disputes so long as it involves no
consideration of doctrinal matters, whether the ritual and liturgy of worship or the tenets
of faith.’” Jones, 443 U.S. at 602 (second emphasis added) (quoting Md. & Va. Eldership
of Churches of God v. Church of God at Sharpsburg, Inc., 396 U.S. 367, 368 (1970)
(Brennan, J., concurring)). So far, however, only two general approaches for resolving
church property disputes have received the Supreme Court’s endorsement as
constitutionally permissible—the rule of hierarchical deference and the neutral-principles
approach. See Jones, 443 U.S. at 604 (endorsing the neutral-principles approach applied
by Georgia); Watson, 80 U.S. at 727 (adopting the rule of hierarchical deference);
Kedroff, 344 U.S. at 115-16 (explaining that the holding of Watson was required by the

        12
            Were the facts disputed, a remand would be necessary, because this Court’s jurisdiction is
appellate only, and “this Court cannot itself find facts.” Davis v. Gulf Ins. Grp., 546 S.W.2d 583, 585
(Tenn. 1977).

        13
            The trial court correctly noted that the Plaintiffs failed to comply with Rule 56.03 of the
Tennessee Rules of Civil Procedure, which requires the moving party to provide “a separate concise
statement of the material facts as to which the moving party contends there is no genuine issue for trial”
along with the motion for summary judgment. Tenn. R. Civ. P. 56.03. While we do not sanction this
noncompliance, we will not deny summary judgment on this basis because the record clearly establishes
that no material facts are in dispute. See Miller v. Wyatt, 457 S.W.3d 405, 412 (Tenn. Ct. App. 2014)
(granting summary judgment despite noncompliance with Rule 56.03, where the material facts were not
in dispute and established that the moving party was entitled to summary judgment as a matter of law),
perm. app. denied (Tenn. Nov. 20, 2014).


                                                  - 16 -
First Amendment). We begin by reviewing the United States Supreme Court decisions
that establish the constitutional parameters within which state courts must remain.

                           1. Rule of Hierarchical Deference

        The Supreme Court announced the rule of hierarchical deference in Watson v.
Jones in 1871. For 150 years preceding Watson, the English rule, articulated in
Craigdallie v. Aikman, 4 Eng. Rep. 435 (1820), had been the dominant approach for
resolving such church property disputes. See Jeffrey B. Hassler, Comment, A Multitude
of Sins? Constitutional Standards for Legal Resolution of Church Property Disputes in a
Time of Escalating Intradenominational Strife, 35 Pepp. L. Rev. 399, 408 (2008)
[hereinafter 35 Pepp. L. Rev. at ___.]; Michael W. McConnell and Luke W. Goodrich,
On Resolving Church Property Disputes, 58 Ariz. L. Rev. 307, 311 (2016) [hereinafter 58
Ariz. L. Rev. at __.]. The English rule required courts to determine “the true standard of
faith in the church organization,” and to ascertain “which of the contending parties before
the court h[eld] to this standard.” Watson, 80 U.S. at 727. Thus, in the absence of
express language, the English rule required courts to make an investigation into the
doctrinal beliefs of the parties and to imply a trust in favor of the party most closely
adhering to the beliefs of the religious organization. 35 Pepp. L. Rev. at 408.

       In Watson, the Court declined to adopt the English rule as the law in this country.
Watson involved a pre-Civil War dispute between antislavery and proslavery factions
over control of the property of the Walnut Street Presbyterian Church in Louisville,
Kentucky. 80 U.S. at 691-93, 727-30. The antislavery faction had been recognized as
the faction entitled to exercise control of the property by the General Assembly—the
highest authority of the Presbyterian Church in the United States—the denomination with
which the Walnut Street Church was affiliated. Id. at 691-93. When the case eventually
reached the United States Supreme Court, both factions were claiming “to be the true
Walnut Street Presbyterian Church” entitled to the property, and each “den[ied] the right
of the other to any such claim.” Watson, 80 U.S. at 717.

       The Supreme Court explained why the English rule would not be applied to decide
the dispute in Watson, stating:

      In this country the full and free right to entertain any religious belief, to
      practice any religious principle, and to teach any religious doctrine which
      does not violate the laws of morality and property, and which does not
      infringe personal rights, is conceded to all. The law knows no heresy, and
      is committed to the support of no dogma, the establishment of no sect.

Id. at 728 (emphasis added). Rather, said the Watson Court,



                                           - 17 -
       [r]eligious organizations come before [civil courts in this country] in the
       same attitude as other voluntary associations for benevolent or charitable
       purposes, and their rights of property, or of contract, are equally under the
       protection of the law, and the actions of their members subject to its
       restraints.

Id. at 714.

        The Supreme Court then categorized religious organizations as either independent
congregations or members of a hierarchical church. Id. at 725-26. For independent
congregations, the Supreme Court explained, rights of competing factions to the use and
possession of church property “must be determined by the ordinary principles which
govern voluntary associations.” Id. at 725. If an independent congregation agrees to be
governed by majority rule, “then the numerical majority of members must control the
right to the use of the property.” Id. If an independent congregation vests officers with
the powers of control, “then those who adhere to the acknowledged organism by which
the body is governed are entitled to the use of the property.” Id.

        For hierarchical religious organizations, however, the Supreme Court emphasized
that it was “bound to look at the fact that the local congregation is itself but a member of
a much larger and more important religious organization, and is under its government and
control, and is bound by its orders and judgments.” Id. at 726-27. The Supreme Court
stressed that,

       [t]he right to organize voluntary religious associations to assist in the
       expression and dissemination of any religious doctrine, and to create
       tribunals for the decision of controverted questions of faith within the
       association, and for the ecclesiastical government of all the individual
       members, congregations and officers within the general association, is
       unquestioned. All who unite themselves to such a body do so with an
       implied consent to this government, and are bound to submit to it. But it
       would be a vain consent and would lead to the total subversion of such
       religious bodies, if any one aggrieved by one of their decisions could
       appeal to the secular courts and have them reversed. It is of the essence of
       these religious unions, and of their right to establish tribunals for the
       decision of questions arising among themselves, that those decisions should
       be binding in all cases of ecclesiastical cognizance, subject only to such
       appeals as the organism itself provides for.

Watson, 80 U.S. at 729-30 (emphases added). Therefore, “whenever the questions of
discipline, or of faith, or ecclesiastical rule, custom, or law have been decided by the
highest of [the] church judicatories to which the matter has been carried, the legal


                                           - 18 -
tribunals must accept such decisions as final, and as binding on them, in their application
to the case before them.” Id. at 727.14

        Applying the rule of hierarchical deference, the Supreme Court in Watson deferred
to the determination of the highest judicatory of the Presbyterian Church about which
faction was entitled to the possession and control of the property of the Walnut Street
Presbyterian Church in Louisville. Id. at 734; see also Hosanna-Tabor, 565 U.S. at 185-
86 (describing the holding in Watson). The Supreme Court grounded its decision in
Watson on “a broad and sound view of the relations of church and state under our system
of laws” rather than the First Amendment Religion Clauses. 80 U.S. at 727. Indeed,
Watson preceded the incorporation and application of the First Amendment to the States.
But, in a subsequent decision, the Supreme Court described Watson as “radiat[ing]. . . a
spirit of freedom for religious organizations, an independence from secular control or
manipulation—in short, power to decide for themselves, free from state interference,
matters of church government as well as those of faith and doctrine” and clarified that the
principles it announced are required by the First Amendment. Kedroff, 344 U.S. at 115-
16.

                                 2. Neutral-Principles Approach

        For almost a century, the rule of hierarchical deference Watson announced was the
only analytical approach to receive the Supreme Courtʼs imprimatur as acceptable under
the First Amendment for resolving church property disputes arising in hierarchical
religious organizations. 58 Ariz. L. Rev. at 316. In 1969, however, the Supreme Court
stated that “neutral principles of law, developed for use in all property disputes” could
also be applied constitutionally to resolve church property disputes. Blue Hull, 393 U.S.
at 449.

       Responding to this statement, the Georgia Supreme Court early on adopted the
neutral principles of law approach. See Jones, 443 U.S. at 600. In applying this
approach, the Georgia Supreme Court examined deeds to disputed church property, state
statutes dealing with implied trusts, and provisions in the constitutions and governing
documents of hierarchical religious organizations regarding ownership of church
property. Id. at 600-601. In a case where none of the church documents included
language of trust in favor of the hierarchical religious organization, the Georgia Supreme
Court awarded the disputed property to the local member congregation. Id. at 600 (citing
Presbyterian Church v. E. Heights Presbyterian Church, 167 S.E.2d 658, 660 (Ga. 1969)).
But, in a case where “the constitution of The United Methodist Church . . . contained an
express trust provision in favor of the general church,” the Georgia Supreme Court

       14
            Because there is no dispute here as to the hierarchical organization of COGIC, we need not
discuss further the analysis applicable to independent congregations.


                                                - 19 -
awarded the disputed property to the United Methodist Church, not the local member
congregation, even though neither the deed to the local property nor state statutes
regarding implied trusts contained language of trust in favor of the hierarchical church.
Id. at 600-601 (citing Carnes v. Smith, 222 S.E.2d 322, 328 (Ga. 1976)) (footnote
omitted).

       In its Jones decision, the Georgia Supreme Court had applied the neutral-
principles approach and had awarded the disputed property to the local member
congregation because the deeds, state statutes regarding implied trusts, the corporate
charter of the local church, and the provisions of the constitution of the hierarchical
religious organization concerning ownership and control of property all “failed to reveal
any language of trust in favor of the general church.” Jones, 442 U.S. at 601.

        The Supreme Court granted certiorari, and in a five-to-four decision, endorsed
Georgia’s neutral principles of law approach, “[a]t least in general outline,” as consistent
with the constitutionally circumscribed role civil courts play in resolving church property
disputes. Id. at 602. The Court described the neutral-principles approach as “completely
secular in operation” and “flexible enough to accommodate all forms of religious
organization and polity.” Id. at 603. The neutral-principles approach, said the Jones
Court, “relies exclusively on objective, well-established concepts of trust and property
law familiar to lawyers and judges,” and by doing so, “promises to free civil courts
completely from entanglement in questions of religious doctrine, polity, and practice.”
Id. The Supreme Court also lauded the neutral-principles approach for providing
religious organizations with “flexibility in ordering private rights and obligations to
reflect the intentions of the parties.” Id. The Jones Court explained that, “[t]hrough
appropriate reversionary clauses and trust provisions, religious societies can specify what
is to happen to church property in the event of a particular contingency, or what religious
body will determine the ownership in the event of a schism or doctrinal controversy.” Id.
“In this manner,” said the Supreme Court, “a religious organization can ensure that a
dispute over the ownership of church property will be resolved in accord with the desires
of the members.” Id. at 603-04.

      Despite the advantages of the neutral-principles approach, the Jones Court
acknowledged that its application would not be “wholly free of difficulty.” Id. at 604.

       The neutral-principles method, at least as it has evolved in Georgia,
       requires a civil court to examine certain religious documents, such as a
       church constitution, for language of trust in favor of the general church. In
       undertaking such an examination, a civil court must take special care to
       scrutinize the document in purely secular terms, and not to rely on religious
       precepts in determining whether the document indicates that the parties
       have intended to create a trust. In addition, there may be cases where the
       deed, the corporate charter, or the constitution of the general church
                                           - 20 -
       incorporates religious concepts in the provisions relating to the ownership
       of property. If in such a case the interpretation of the instruments of
       ownership would require the civil court to resolve a religious controversy,
       then the court must defer to the resolution of the doctrinal issue by the
       authoritative ecclesiastical body.

               On balance, however, the promise of nonentanglement and neutrality
       inherent in the neutral-principles approach more than compensates for what
       will be occasional problems in application. These problems, in addition,
       should be gradually eliminated as recognition is given to the obligation of
       States, religious organizations, and individuals [to] structure relationships
       involving church property so as not to require the civil courts to resolve
       ecclesiastical questions. We therefore hold that a State is constitutionally
       entitled to adopt neutral principles of law as a means of adjudicating a
       church property dispute.

Id. at 604 (emphases added) (internal citations, quotation marks, and alterations omitted).

       The dissent in Jones would have rejected the neutral-principles approach and
required civil courts resolving property disputes to defer, as a matter of constitutional
law, to “the authoritative resolution of the dispute within the church itself.” Id. at 614-15
(Powell, J., dissenting) (internal quotation marks omitted). The Jones majority
concluded, however, that the First Amendment does not require states “to adopt a rule of
compulsory deference to religious authority in resolving church property disputes . . .
where no issue of doctrinal controversy is involved.” Id. at 605 (emphasis added).

       The dissent in Jones also argued that compelling civil courts to defer as a matter of
constitutional law would ensure that religious freedom is protected from governmental
interference in matters of religious doctrine. Id. at 616-17 (Powell, J., dissenting). The
Jones majority disagreed that the neutral-principles approach would allow the
government to interfere with religious freedom, explaining:

       At any time before the dispute erupts, the parties can ensure, if they so
       desire, that the faction loyal to the hierarchical church will retain the church
       property. They can modify the deeds or the corporate charter to include a
       right of reversion or trust in favor of the general church. Alternatively, the
       constitution of the general church can be made to recite an express trust in
       favor of the denominational church. The burden involved in taking such
       steps will be minimal. And the civil courts will be bound to give effect to
       the result indicated by the parties, provided it is embodied in some legally
       cognizable form.

Id. at 606 (emphasis added).
                                            - 21 -
       Although the Jones Court endorsed the neutral-principles approach, it remanded to
the Supreme Court of Georgia to determine whether the neutral-principles approach had
been constitutionally applied. Id. at 609-10. The “complicating factor” in Jones was that
the schism was among members of a single local congregation, rather than between a
local member congregation and a hierarchical religious organization. Id. at 606-07. The
Georgia Supreme Court had concluded, “[w]ithout further analysis or elaboration,” that
“the local congregation was represented by the majority faction.” Id. at 601. Before the
United States Supreme Court, the minority faction argued that “the question of which
faction is the true representative of the [local church] is an ecclesiastical question that
cannot be answered by a civil court,” at least not “in a case involving a hierarchical
church . . . where a duly appointed church commission has determined which of the two
factions represents the true congregation.” Id. at 607 (internal quotation marks omitted).
The Jones Court explained that, under the neutral-principles approach, and consistently
with the First Amendment, Georgia could adopt a rebuttable presumption of majority
representation as the means to identify the faction entitled to the disputed property. Id. at
607. However, the Court explained,

       any rule of majority representation can always be overcome, under the
       neutral-principles approach, either by providing, in the corporate charter or
       the constitution of the general church, that the identity of the local church
       is to be established in some other way, or by providing that the church
       property is held in trust for the general church and those who remain loyal
       to it. Indeed, the State may adopt any method of overcoming the
       majoritarian presumption, so long as the use of that method does not impair
       free-exercise rights or entangle the civil courts in matters of religious
       controversy.

Id. at 607-08 (footnote omitted) (emphasis added). The Georgia Supreme Court had
failed to adopt explicitly a presumptive rule of majority representation, and statements in
some of its decisions indicated that the identity of the faction constituting the local church
was to be determined by the laws and regulations of the hierarchical religious
organization. Id. at 608. The Jones Court explained that, if Georgia applied a rule
requiring the identity of the local faction to be determined according to the laws and
regulations of the hierarchical religious organization, “then the First Amendment requires
that the Georgia courts give deference to the presbyterial commission’s determination of
[the local congregation’s] identity.” See id. at 609. The Jones Court then remanded for
the Georgia Supreme Court to determine which method it had adopted under the neutral-
principles approach for identifying the local congregation. Id. at 610.

       In summary then, under the neutral-principles approach, courts decide church
property disputes based on the same neutral principles of law applicable to other entities,
while deferring to the decisions of religious entities on ecclesiastical and church polity
questions. Jones, 443 U.S. at 603-04; see also Milivojevich, 426 U.S. at 708-09.
                                            - 22 -
   3. Current Approaches Adopted by States for Resolving Church Property Disputes

        The Supreme Court has not rendered a decision involving a church property
dispute since Jones.15 Although Jones made clear that the First Amendment does not
mandate adoption of any particular analysis for resolving church property disputes, so
long as the approach adopted “involves no consideration of doctrinal matters,” 443 U.S.
at 602, state courts have fashioned no other distinct approaches. Instead, a majority of
states now apply the neutral-principles approach, while several states have retained the
rule of hierarchical deference, and still other states have not yet decided which approach
to adopt. See 58 Ariz. L. Rev. at 319, n.77 (stating that twenty-nine states have adopted
some version of the neutral-principles approach, nine states have retained the rule of
hierarchical deference, and twelve states are unclear or undecided, but noting that “[a]ny
precise count should be considered with caution, as the law in some states is ambiguous,
inconsistent, or in flux” (citing 35 Pepp. L. Rev. at 457)); see also Hope Presbyterian
Church of Rogue River v. Presbyterian Church (U.S.A.), 291 P.3d 711, 721 n.3 (Or.
2012) [hereinafter Rogue River] (stating that a majority of states apply the neutral-
principles approach); Masterson v. Diocese of Nw. Tex., 422 S.W.3d 594, 606-07 n.6
(Tex. 2013) (stating that a majority of states have adopted the neutral-principles approach
and citing cases); Heartland Presbytery v. The Presbyterian Church of Stanley, Inc., 390
P.3d 581, 596 (Kan. Ct. App. 2017) (stating that a majority of states have adopted the
neutral-principles approach). Many hierarchical religious organizations have responded
to Jones as well by acting on the Supreme Court’s suggestion, see Jones, 443 U.S. at 606,
and including in their constitutions and/or other governing documents provisions stating
clearly that local member church property is held in trust for the hierarchical religious
organization. 58 Ariz. L. Rev. at 320-21; Presbytery of Greater Atlanta, Inc. v.
Timberridge Presbyterian Church, Inc., 719 S.E.2d 446, 458 (Ga. 2011). Other
denominations, such as the United Methodist Church, “require[] ‘all written instruments
of conveyance’ for all church property to state that the property ‘shall be kept,
maintained, and disposed of for the benefit of the United Methodist Church and subject to
the usages and the Discipline of the United Methodist Church.’” See 58 Ariz. L. Rev. at
342 (quoting The Book of Discipline of the United Methodist Church 649 ¶ 2503(4)
(Harriet Jane Olson et al. eds., 2000)). “Such restrictions have rarely been the subject of
litigation in reported cases—most likely because these restrictions make ownership
clear.” Id.



       15
            As already noted, in 2012, the Supreme Court discussed the ministerial exception. See
Hosanna-Tabor, 565 U.S. at 188. In doing so, the Supreme Court reaffirmed several prior decisions,
including Watson. Hosanna-Tabor, 565 U.S. at 185-87. The Supreme Court did not mention or refer to
Jones in Hosanna-Tabor.




                                              - 23 -
       Most litigation has arisen in cases, such as this one, where a hierarchical religious
organization includes a provision in its constitution and/or other governing documents
providing that local church property is held in trust for the hierarchical organization and a
local church fails or declines to include the trust provision in deeds or other documents of
conveyance. 58 Ariz. L. Rev. at 340. In such circumstances, “massive inconsistency”
exists among states adopting the neutral-principles approach, and courts have reached
“different results given the same facts, depending on how the court in question applies
the standard.” See 35 Pepp. L. Rev. at 426, 431; see also Gauss, 28 A.3d at 316; Rogue
River, 291 P.3d at 721-22. From this confusion, two versions of the neutral-principles
approach have emerged. One version, applied by a few states, is known as the strict
neutral-principles approach, and the other version, applied by a majority of states, is
known as the hybrid neutral-principles approach.

                           a. Strict Neutral-Principles Approach

       Under the strict approach, courts only give effect to provisions in church
constitutions and governing documents of hierarchical religious organizations if the
provisions appear in civil legal documents or satisfy the civil law requirements and
formalities for imposition of a trust. 58 Ariz. L. Rev. at 324-25. Although some
commentators favor the strict neutral-principles approach, see id. at 327, 358, so far, only
a few states have adopted it, see Presbytery of Ohio Valley, Inc. v. OPC, Inc., 973 N.E.2d
1099, 1107 n.7 (Ind. 2012); All Saints Parish Waccamaw v. Protestant Episcopal Church
in the Diocese of S.C., 685 S.E.2d 163, 174 (S.C. 2009); Masterson, 422 S.W.3d at 611-
12.

                          b. Hybrid Neutral-Principles Approach

        Most states apply the hybrid approach. See 58 Ariz. L. Rev. at 322. Under this
approach, courts defer to and enforce trust language contained in the constitutions and
governing documents of hierarchical religious organizations, even if this language of trust
is not included in a civil legal document and does not satisfy the formalities that the civil
law normally requires to create a trust. Id.; see, e.g. St. Paul Church, Inc. v. Bd. of Trs. of
Alaska Missionary Conference of United Methodist Church, Inc., 145 P.3d 541, 554-55
(Alaska 2006) (applying the hybrid neutral-principles approach and concluding that a
trust in favor of the United Methodist Church existed based on the trust provision in The
Book of Discipline, even though the local church had failed to include the trust language
in the deed of conveyance); Gauss, 28 A.3d at 319 (finding trust in favor of hierarchical
religious organization based on language in church constitution); Timberridge
Presbyterian Church, Inc., 719 S.E.2d at 458 (describing the hybrid neutral-principles
approach approved in Jones as involving the consideration of the local and hierarchical
church documents regarding property ownership); Episcopal Diocese of Rochester v.
Harnish, 899 N.E.2d 920, 924-25 (N.Y. 2008) (finding express trust provision in the
hierarchical church constitution dispositive in favor of the hierarchical church, even
                                             - 24 -
though deeds, certificate of incorporation, and state law contained no language
supporting creation of such a trust). Courts applying the hybrid approach emphasize that
member congregations voluntarily join hierarchical religious organizations, and that, by
doing so, agree to be bound by the constitution and rules of those organizations. See In
re Episcopal Church Cases, 198 P.3d 66, 81-82, 84 (Cal. 2009) (ruling in favor of
hierarchical church after examining deeds, local church’s corporate documents, state
statutes governing religious property, and denomination church constitution, giving
particular weight to the fact that the local church “agreed from the beginning of its
existence to be part of a greater denomination church and to be bound by that greater
church’s governing instruments”).

        Neither version of the neutral-principles approach dispenses entirely with the
principle of hierarchical deference, however. As the Supreme Court explained in Jones,
civil courts applying the neutral-principles approach still must “defer to the resolution of
issues of religious doctrine or polity by the highest court of a hierarchical church
organization.” 443 U.S. at 602. In this respect, Jones is entirely consistent with Watson.

                4. Tennessee’s Approach to Resolving Church Property Disputes

       Like the United States Supreme Court, this Court has not addressed a church
property dispute since Jones. However, in another context—an appeal involving breach
of fiduciary duty and negligent hiring, supervision, and retention claims against the
Catholic Bishop for the Diocese of Memphis—this Court has stated that the neutral-
principles approach applies “[w]ith regard to external affairs of religious institutions.”
Redwing, 363 S.W.3d at 449.

        Moreover, the Court of Appeals expressly adopted the neutral-principles approach
in an appeal involving a church property dispute four years before the United States
Supreme Court decided Jones. See Fairmount Presbyterian Church, Inc. v. Presbytery of
Holston of the Presbyterian Church of U.S., 531 S.W.2d 301, 306 (Tenn. Ct. App. 1975)
(adopting the neutral-principles approach). In doing so, the Court of Appeals–like the
Georgia Supreme Court–relied on the Supreme Court’s 1969 decision stating that such
claims could be resolved by applying neutral principles of law. Id. at 304 (discussing
Blue Hull, 393 U.S. 440). Applying the neutral-principles approach, the Court of
Appeals held that an implied trust arose in favor of the hierarchical religious organization
because the local church had been chartered to be a member of the hierarchical religious
organization. Id. at 305-06. The Court of Appeals did not use the terms hybrid or strict
in Fairmount, or any subsequent case, when describing the neutral-principles approach it
adopted. But in Fairmount, and in prior and subsequent decisions, the Court of Appeals
has stated that when property is conveyed to a local church that is part of a hierarchical
religious organization, the property is held in trust for the hierarchical religious
organization, even when no trust language is included in the deed of conveyance. See,
e.g., St. Andrew’s, 2012 WL 1454846, at *20; Church of God In Christ, Inc. v. Middle
                                           - 25 -
City Church of God In Christ, 774 S.W.2d 950, 952 (Tenn. Ct. App. 1989); The
Cumberland Presbyterian Church v. N. Red Bank Cumberland Presbyterian Church, 430
S.W.2d 879, 882 (Tenn. Ct. App. 1968); Hardin v. Starnes, 221 S.W.2d 824, 828 (Tenn.
Ct. App. 1949).

       The Court of Appeals most recently applied the neutral-principles approach in
Saint Andrew’s. In that case, “[a]n Episcopal parish in Nashville asserted its intention to
disassociate from the Diocese of Tennessee, resulting in the Diocese to file a declaratory
judgment action to determine whether the Diocese or the local congregation owned and
controlled the real and personal property where the local congregation worshiped.” 2012
WL 1454846, at *1. The trial court ruled that the Episcopal Church is a hierarchical
religious organization and concluded that the local parish held its real property in trust for
the Diocese. Id. The local parish appealed, arguing that the trial court lacked subject
matter jurisdiction based on the ecclesiastical abstention doctrine. Id. at *6. The Court of
Appeals rejected this argument, explaining, correctly, that the ecclesiastical abstention
doctrine only precludes civil courts from exercising jurisdiction over “issues of canon
law, religious doctrine, or church governance.” Id. at *7 (citing Milivojevich, 426 U.S.
at 710). The Court of Appeals emphasized that the ecclesiastical abstention doctrine does
not preclude a court from examining “religious documents such as a church constitution
for language of a trust” in order to apply the neutral-principles approach and resolve a
church property dispute. Id. at *8 (citing Jones, 443 U.S. at 604) (emphasis in original).
After examining the governing documents of the Episcopal Church, the Court of Appeals
affirmed the trial court, explaining that the Episcopal Church’s governing documents
clearly established that all real property owned by local parishes was held in trust for the
Episcopal Church. Id. at *20.

       Having reviewed prior Tennessee decisions, as well as the relevant precedent from
the Supreme Court and other jurisdictions, we agree with the Court of Appeals that courts
in Tennessee should apply the neutral-principles of law approach when called upon to
resolve church property disputes. We also conclude that the hybrid approach is most
consistent with the analysis the Supreme Court reviewed and approved as constitutionally
permissible in Jones and also most consistent with the analysis courts in this State have
previously used when resolving church property disputes. In applying the hybrid
approach, Tennessee courts may consider any relevant statutes, the language of the deeds
and any other documents of conveyance, charters and articles of incorporation, and any
provisions regarding property ownership that may be included in the local or hierarchical
church constitutions or governing documents. But under the neutral-principles approach
that Jones approved as constitutionally permissible, and which we adopt, a civil court
must enforce a trust in favor of the hierarchical church, even if the trust language appears
only in the constitution or governing documents of the hierarchical religious organization.
See Jones, 443 U.S. at 606. This understanding of the contours of the neutral-principles
approach derives from the discussion in Jones of the two options available to hierarchical
religious organizations for ensuring that real property owned by local member churches is
                                            - 26 -
held in trust for the hierarchical organization. Id. The Supreme Court stated that deeds
or corporate charters may be modified “at any time before [a property] dispute erupts . . .
to include a right of reversion or trust in favor of the general church.” Id.
“Alternatively,” the Supreme Court explained, “the constitution of the general church can
be made to recite an express trust in favor of the denominational church.” Id. The Court
described the burden required to take these steps as “minimal” and declared that civil
courts would “be bound to give effect to the result indicated by the parties, provided it is
embodied in some legally cognizable form.” Id. Read in context, this passage from
Jones contemplates two methods of establishing a trust in favor of the hierarchical
religious organization—one involving modification of civil legal documents and one
involving modification of the governing documents of hierarchical religious
organizations. Where a religious organization chooses the second option and includes an
express trust provision in its constitution or governing documents before a dispute arises,
courts in Tennessee must enforce and give effect to the trust provision, even if trust
language does not appear in a deed or other civil legal document.16 By doing so, the
neutral-principles approach will provide both hierarchical religious organizations and
local member congregations the flexibility and predictability that Jones envisioned,
allowing these organizations to decide for themselves how property disputes will be
resolved before a dispute arises, thus avoiding contentious, painful, time consuming, and
expensive litigation and minimizing the role of civil courts. See Jones, 443 U.S. at 603-
04.

                          5. Application of the Hybrid Neutral-Principles Approach

       Having clarified the governing analysis, we now consider whether the Court of
Appeals erred by affirming the trial court’s dismissal of this lawsuit. We begin with the
Court of Appeals’ conclusion that because Temple COGIC had not formally withdrawn
from COGIC, this appeal involves only an ecclesiastical question rather than a dispute
over church property. We have found no support for this proposition in the decisions of
the United States Supreme Court or this Court.17 Indeed, Jones, the seminal decision on

        16
           We note that both this Court and the Court of Appeals have declined to impose trusts in favor
of hierarchical religious organizations where deeds conveying disputed property include language clearly
vesting control of the disputed property in the local churches, rather than the hierarchical religious
organization, and where no language of trust appeared in documents of the hierarchical church. See, e.g.,
Ward v. Crisp, 226 S.W.2d 273, 275-76 (Tenn. 1949); Emmanuel Churches of Christ v. Foster, No.
M2000-00812-COA-R3-CV, 2001 WL 327910, at *3 (Tenn. Ct. App. Apr. 5, 2001). That fact scenario is
not presented in this appeal.

        17
           The only support the Court of Appeals provided for its determination that withdrawal was a
condition precedent to a court’s exercise of jurisdiction was language used in a prior Court of Appeals’
opinion to state the issue presented in that case. See Church of God in Christ, Inc., 2016 WL 325499, at
*7 (quoting the issue statement from Saint Andrew’s, 2012 WL 1454846, at *13).


                                                 - 27 -
the neutral-principles approach, refutes it. As already explained, Jones involved a
property dispute among factions of the congregation of a member church—a dispute
quite similar to this appeal. Jones, 443 U.S. 595. The first question the Supreme Court
answered in Jones was whether the hierarchical church held the property in trust, and the
second question posed but remanded to the Georgia Supreme Court to answer, was which
faction represented the local member church that was entitled to the control and use of
the property the hierarchical church held in trust. Id. at 608-09. As to this second
question, the Supreme Court explained that, if a state chooses to identify the local
member church by reference to the governing doctrine of the hierarchical church, then the
state must defer to any binding determination made by an appropriate authority of the
hierarchical church as to the identity of the local member church. Jones, 443 U.S. at 609-
10. Nowhere did the Supreme Court in Jones indicate that the property dispute was
beyond the power of civil courts to resolve simply because the local member church had
not formally withdrawn from the hierarchical church. We likewise decline to impose
such a constraint. As already noted, states have an “interest in the peaceful resolution of
property disputes, and in providing a civil forum where the ownership of property can be
determined conclusively.” Jones, 443 U.S. at 602. Therefore, we reject the Court of
Appeals’ holding that a local member church must formally withdraw from a hierarchical
religious organization before a civil court may exercise jurisdiction over a church
property dispute. 18 Parties seeking to invoke the jurisdiction of a civil court must simply
allege facts establishing that a church property dispute actually exists.




        18
            The Court of Appeals in this case relied upon an earlier decision involving COGIC as a basis
for declining to resolve the property dispute in this appeal. In the prior case, the Court of Appeals also
declined to rule, citing the ecclesiastical abstention doctrine. See Church of God in Christ, Inc., 774
S.W.2d at 952. But in that prior case COGIC was not seeking possession of the property, had not alleged
that the member church was seeking to withdraw from COGIC, and had not alleged that the congregation
of the member church was split. COGIC sought only a judicial determination that the member church
held its property in trust for COGIC. Id. Under those circumstances, the Court of Appeals properly
declined to rule on the case but should have based its ruling on the ground that the lawsuit was not
justiciable, rather than relying on the ecclesiastical abstention doctrine. To be justiciable “a real question
rather than a theoretical one must be presented and a legally protectable interest must be at stake.” West
v. Schofield, 460 S.W.3d 113, 130 (Tenn. 2015) (citing Cummings v. Beeler, 223 S.W.2d 913, 915
(Tenn. 1949)) (emphasis in original). If a controversy involves only a “theoretical or hypothetical state of
facts, the controversy is not justiciable.” Id. (citing Story v. Walker, 404 S.W.2d 803, 804 (Tenn. 1966))
(emphasis in original). Were the rule otherwise, “the ‘courts might well be projected into the limitless
field of advisory opinions.’” Id. (quoting Story, 404 S.W.2d at 804). The prior appeal clearly involved
only a theoretical question and not a property dispute. Indeed, the Court of Appeals in the earlier case
implicitly recognized as much when it commented that “future adjudication may be necessary” “[s]hould
the local congregation withdraw or should there b[e] a true impasse relating to property rights.” Church
of God in Christ, Inc., 774 S.W.2d at 953. Unlike the earlier lawsuit, the facts of this case
overwhelmingly establish the existence of a church property dispute.


                                                    - 28 -
       Here, the allegations of the second amended complaint clearly—indeed
overwhelmingly—establish the existence of a church property dispute. The second
amended complaint alleges that Bishop Hall, the duly appointed pastor of Temple
COGIC, was barred from entering the facility and was threatened with arrest by a law
enforcement officer should he remain on the premises. Additionally, persons purportedly
acting as trustees for Temple COGIC executed a quit claim deed conveying the property
to the Moscow Church, an entity not affiliated with COGIC. Thus, a property dispute
clearly exists requiring a civil court to determine whether Temple COGIC property was
held in trust for COGIC. As in Jones, the deed to the disputed property does not include
language creating a trust in favor of COGIC. Rather, the property was conveyed to the
trustees of Temple COGIC. Nevertheless, and also like Jones, the governing documents
of the hierarchical church, here COGIC, includes a provision indicating that real property
of local member churches “is held in trust for the use and benefit of the members of the
Church of God in Christ with National Headquarters in the City of Memphis, Shelby
County, Tennessee, and subject to the Charter, Constitution, Laws and Doctrines of said
Church, now in full force and effect, or as they may be hereafter amended, changed or
modifie[d].” This language appears not once but twice in the governing documents of
COGIC. Temple COGIC agreed to be bound by COGIC’s constitution and governing
documents when it joined COGIC and received a COGIC membership certificate.
Additionally, for many years before this dispute arose, Temple COGIC demonstrated its
intent to be bound by COGIC’s constitution and laws by recognizing the authority of
Ecclesiastical Bishops and Pastors who were appointed pursuant to COGIC’s constitution
and laws. Accordingly, applying the hybrid neutral-principles approach, we conclude
that Temple COGIC’s real property was held in trust for COGIC.

       As in Jones, the second question that must be answered in this appeal is which
faction of Temple COGIC constitutes the faction entitled to the possession and use of the
property that is held in trust for COGIC. The Defendants argue that this is an
ecclesiastical question beyond the jurisdiction of civil courts to decide because it requires
a determination of whether Bishop Hall is the duly appointed pastor of Temple COGIC.
The Plaintiffs agree that whether Bishop Hall is the duly appointed pastor of Temple
COGIC is an ecclesiastical question that civil courts may not answer. However, the
Plaintiffs point out that this question has already been resolved by the Ecclesiastical
Council’s judgment and that civil courts need only defer to this binding and final
judgment of the Ecclesiastical Council when resolving the underlying church property
dispute. We agree with the Plaintiffs.

       Again, Jones teaches that a court may constitutionally apply the neutral-principles
approach to resolve a property dispute so long as the civil court avoids deciding
ecclesiastical matters and defers to the resolution of issues of religious doctrine or polity
by the highest court of the hierarchical church. Jones, 443 U.S. at 602. An Ecclesiastical
Council of COGIC has determined that Bishop Hall was at all times relevant to this
appeal the duly appointed pastor of Temple COGIC. Our role is simply to defer to this
                                            - 29 -
determination in resolving this appeal. Id.; see also Hosanna-Tabor, 565 U.S. at 185
(“Our decisions in that area confirm that it is impermissible for the government to
contradict a church’s determination of who can act as its ministers.”). It is undisputed
that, as the duly appointed pastor of Temple COGIC, Bishop Hall had the right to use and
exercise control over the real property and to administer and supervise the personal
property of Temple COGIC.

       In light of our conclusion that Temple COGIC held its real property in trust for
COGIC and the Ecclesiastical Council’s determination, to which we must defer, that
Bishop Hall was the duly appointed pastor of Temple COGIC, we conclude that the
Plaintiffs are entitled to summary judgment on their claims regarding the real and
personal property of Temple COGIC. Nevertheless, we remand this matter to the trial
court for entry of summary judgment in favor of the Plaintiffs and for any further
proceedings and orders that may be necessary to afford the Plaintiffs possession and
control of Temple COGIC’s real property, including an order invalidating the quit claim
deed, if necessary, and any further proceedings that may be necessary to address and
resolve the Plaintiffs’ request for an accounting and control of Temple COGIC’s personal
property.

                                     III. Conclusion

       For the reasons stated herein, the judgments of the trial court and the Court of
Appeals are reversed. The Plaintiffs’ motion for summary judgment is granted. This
matter is remanded to the trial court for any further proceedings and orders that may be
necessary to fashion appropriate remedies to afford the Plaintiffs the relief to which they
are entitled under this decision. Costs of this appeal are taxed to the Defendants, for
which execution may issue if necessary.

                                                    _________________________________
                                                    CORNELIA A. CLARK, JUSTICE




                                           - 30 -
