                 IN THE COURT OF APPEALS OF NORTH CAROLINA

                                        No. COA15-1313

                                    Filed: 7 February 2017

Cumberland County, No. 13 CVS 8726

GEORGE BURNS, MACK McCANN and CHARLES BARTLETT, Trustees of Park’s
Chapel Free Will Baptist Church, Plaintiff(s),

                v.

KINGDOM IMPACT GLOBAL MINISTRIES, INC., Defendant.


      Appeal by Defendant from orders entered 18 December 2014 by Judge Richard

T. Brown and 19 June 2015 by Judge Tanya T. Wallace1 in Cumberland County

Superior Court. Heard in the Court of Appeals 24 May 2016.


      Yarborough, Winters & Neville, P.A., by J. Thomas Neville, for Plaintiffs-
      Appellees.

      James H. Locus, Jr., for Defendant-Appellant.


      INMAN, Judge.


      Kingdom Impact Global Ministries, Inc. (“Defendant” or “Kingdom Impact”)

appeals from the 19 June 2015 order granting a motion for summary judgment in

favor of George Burns, Mack McCann, and Charles Bartlett, in their capacity as

trustees of Parks Chapel Free Will Baptist Church (collectively “Plaintiffs”), as the

rightful title holder to several tracts of land located at 868 Amye Street in




      1   The order below incorrectly spells Judge Wallace’s name as Judge Tonya T. Wallace.
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Fayetteville, North Carolina. Defendant also appeals the trial court’s 18 December

2014 order imposing sanctions for Defendant’s failure to respond to Plaintiffs’

discovery requests. Defendant argues that Plaintiffs lacked standing, and that the

trial court erred in imposing discovery sanctions and granting Plaintiffs’ motion for

summary judgment because there existed genuine issues of material facts. After

careful review, we affirm the trial court’s discovery sanctions and summary judgment

orders.

                                  Factual History

      This appeal arises out of the disputed ownership of real property located at 868

Amye Street, in Fayetteville, North Carolina (“the Property”).          The Property,

conveyed seventy years ago to the trustees of Free Will Baptist Church, is comprised

of several tracts of land and includes a church sanctuary.            Over the years,

parishioners deeded various tracts of land to the “Trustees of the Freewill Baptist

Church and their successors” and later to the “Trustees of Parks Chapel Free Will

Baptist Church and their successors.” The church was affiliated with the United

American Free Will Baptist Denomination (the “Denomination”).

      The tracts central to this dispute, where the sanctuary is sited, have been

historically identified as Lots 12, 13, and 14 according to the plat of “Mac’s Park.” In

1947, Emily McMillan conveyed Lots 13 and 14 by deed to the trustees of Freewill

Baptist Church to be used for church purposes. In 1967, Mabel McNeill conveyed Lot



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12 by deed to the trustees of Free Will Baptist Church to be used by the

Denomination.

      Contained within the 1947 deed conveying Lots 13 and 14 to Free Will Baptist

Church is the following restrictive language:

             TO HAVE AND TO HOLD, the aforesaid lots of land and
             all privileges and appurtenances thereto belonging, to the
             said parties of the second part, and their successors in
             office, to their only use and behood for so long as said
             property is used only for church purposes, and no longer,
             upon the trust, nevertheless, that said property be held by
             the parties of the second part, and their successors in office,
             for the sole use, benefit, and enjoyment of said FREEWILL
             BAPTIST CHURCH, its successors and assigns.

The 1967 deed conveying Lot 12 to Free Will Baptist Church includes the following

restrictive language:

             In trust that said premises shall be used, maintained and
             disposed of as a place of Divine worship for the use of the
             United American Free Will Baptist Church in America,
             subject to the discipline, usage, and ministerial elections of
             said church, as may be authorized and declared from time
             to time by the General Conference of said church and the
             Annual Conference in whose bounds the premises are
             situated.

      In 1984, the trustees of Free Will Baptist Church conveyed Lots 13 and 14 to

the trustees of Parks Chapel Free Will Baptist Church (“Parks Chapel”) as successor

to Free Will Baptist Church. It is undisputed that the church simply changed its

name at that time. It is also undisputed that the trustees of Free Will Baptist Church,

for reasons that do not appear in the record, did not convey title in Lot 12 to the


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trustees of Parks Chapel when they conveyed Lots 13 and 14 when the church

changed its name.

      In 1999, Parks Chapel became incorporated under North Carolina law as a

registered charitable or religious nonprofit corporation.       The corporate bylaws

required that the church be governed by the Book of Discipline of the Denomination,

stating “this local church shall maintain its’ [sic] affiliation with the United American

Freewill Baptist Denomination and agrees to recognize and be governed by the

United American Freewill Baptist Discipline . . . .”

      On 3 April 2009, at the conclusion of a worship service, then acting pastor of

Parks Chapel, William Thomas Ford (“Pastor Ford”), held a conference meeting to

propose withdrawing Parks Chapel from the Denomination and the regional

conference to which it was assigned, Cape Fear Conference B (the “Conference”). The

parties submitted conflicting evidence before the trial court regarding whether notice

of the meeting was provided, who was permitted the opportunity to vote on the

withdrawal, and the outcome of a vote held during the meeting.

      A month later, on 8 May 2009, Pastor Ford sent a letter to the Denomination

and the Conference notifying them that Parks Chapel was withdrawing its

membership and would cease paying dues.

      In February 2010, Pastor Ford signed Articles of Incorporation for Kingdom

Impact, which were filed with the North Carolina Secretary of State’s Office,



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declaring Kingdom Impact a non-profit religious organization. In May 2010, Frances

Jackson, identified as a trustee of Parks Chapel, signed Articles of Merger of Parks

Chapel Freewill Baptist Church, Inc. into Kingdom Impact Global Ministries, Inc.

with the Secretary of State’s Office. The affidavit testimony before the trial court

however, challenged whether the merger was properly voted on by the members of

Parks Chapel.

      In June 2010, one month after the Articles of Merger were filed, the

Denomination appointed Nathaniel Jackson as the Interim Pastor of Parks Chapel.

The members of Parks Chapel who had opposed the withdrawal from the

Denomination continued their affiliation with the Denomination and met for worship

at the sanctuary on the Property until Defendant denied them access to the Property.

      On 12 September 2011, Frances Jackson signed a deed transferring title of the

Property from the trustees of Parks Chapel to the trustees of Kingdom Impact. This

deed expressly transferred Lots 13 and 14 of Mac’s Park, but does not mention Lot

12. Unlike the 1984 deed conveying the Property from the trustees of Free Will to

the trustees of Parks Chapel, which was signed by all church trustees, no one other

than Ms. Jackson signed the 2011 deed. Plaintiffs dispute that Ms. Jackson was a

trustee of Parks Chapel at that time. Plaintiffs contend that Kingdom Impact,




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claiming ownership and control of the Property based on the deed, dispossessed

Plaintiffs of the Property and prevented them from continuing to worship there.2

                                     Procedural History

       Plaintiffs filed a civil action on 12 November 2013 alleging that Kingdom

Impact was not authorized to transfer title to the Property and sought to quiet the

title for their claims to the Property as the trustees of Parks Chapel. Plaintiffs also

filed notice of lis pendens with the Clerk of Court in Cumberland County. Defendant

filed an answer and counterclaim to quiet title in the Property.

       Discovery Disputes

       In 2014, several months after commencing this action, Plaintiffs served

Defendant with interrogatories and a request for production of documents.

Defendant failed to respond within the time allowed and did not seek an extension of

time to respond. Plaintiffs sought responses without success before filing a motion to

compel discovery.       The trial court entered a consent order on 14 October 2014

(“Consent Order”) requiring Defendant “to produce full and accurate responses[,]”

and “produce all documents responsive” to Plaintiffs’ discovery request within forty-

five days.




       2 The record indicates that by 2009, when Pastor Ford proposed and took a vote to withdraw
from the Denomination, Parks Chapel’s parishioners were gathering for worship at 2503 Murchison
Road, Fayetteville, North Carolina, a location different from the Property. The real property at the
Murchison Road address is not at issue in this appeal.

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      Defendant served Plaintiffs with discovery responses on 20 November 2014.

Instead of providing factual responses to each interrogatory, Defendant objected to

many of the interrogatories as “over broad and vague.” Plaintiffs argued the response

was inadequate and filed a motion to show cause and sanctions. The trial court

entered an order on 18 December 2014 (“Sanctions Order”) finding that “Defendant

has failed to fully respond to the Plaintiffs’ discovery requests and Orders of this

[c]ourt” and required that Defendant provide substantive responses no later than 19

January 2015. The Sanctions Order also prohibited Defendant from offering in

evidence, at trial or in any motion, any documents responsive to the discovery

requests which were not tendered to Plaintiffs by 19 January 2015.

      On 20 January 2015, Defendant served Plaintiffs with a request for

admissions. Plaintiffs moved for a protective order from the request on the basis that

as a result of the Sanctions Order, Defendants would be prohibited from introducing

in evidence any admissions obtained after 19 January 2015. The trial court granted

the motion in a protective order entered 27 February 2015 (“Protective Order”).

      Motions for Summary Judgment

      The parties then filed cross motions for summary judgment. The motions were

heard over multiple sessions of court in which counsel disputed the legal merits as




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well as the admissibility of various affidavits.3 The trial court took the matter under

advisement. On 19 June 2015, the trial court entered an order granting Plaintiffs’

motion for summary judgment and denying Defendant’s motion for summary

judgment. Defendant timely appealed.

                                              Analysis

        I.      Discovery Sanctions

        Defendant argues the trial court erred in the Sanctions Order and in the

Protective Order by expanding the scope of the sanctions beyond the language of the

Sanctions Order. Specifically, Defendant asserts that the facts do not support the

trial court’s finding that Defendant substantially violated any of the discovery rules

and that the Sanctions Order did not preclude Defendant from pursuing discovery

after 19 January 2015. We conclude that the trial court did not abuse its discretion

in entering either the Sanctions Order or the Protective Order.

        A. Sanctions Order

        The imposition of sanctions under Rule 37 for failure to comply with discovery

requests and orders is a matter within the sound discretion of the trial court and

cannot be overturned on appeal absent a showing of abuse of discretion. Bumgarner



        3  Defendant filed with its motion an affidavit by Francis Jackson dated 17 April 2015.
Plaintiffs filed a motion to strike the affidavit on the grounds that it violated the 18 December 2014
discovery sanctions order. The trial court overruled the motion to strike and permitted the affidavit.
When counsel appeared for the second session of the hearing, counsel disputed the admissibility of
additional affidavits, including two that were filed but not served before the second hearing. The trial
court overruled all objections and allowed the affidavits.

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v. Reneau, 332 N.C. 624, 631, 422 S.E.2d 686, 690 (1992) (citation omitted). “An abuse

of discretion may arise if there is no record evidence which indicates that [a]

defendant acted improperly, or if the law will not support the conclusion that a

discovery violation has occurred.” In re Pedestrian Walkway Failure, 173 N.C. App.

254, 264, 618 S.E.2d 796, 803 (2005) (citations omitted).       The specific choice of

sanctions imposed by the trial court is likewise within its sound discretion. Brooks v.

Giesey, 106 N.C. App. 586, 592, 418 S.E.2d 236, 239 (1992) (citation omitted). As an

appropriate sanction for a failure to comply with a discovery order, Rule 37(b)

explicitly grants the trial court authority to “refus[e] to allow the disobedient party

to support or oppose designated claims or defenses, or prohibit[] the party from

introducing designated matters in evidence” and to “require the party failing to obey

the order to pay the reasonable expenses, including attorney’s fees[.]” N.C. Gen. Stat.

§ 1A-1, Rule 37(b) (2015).

      Here, the record is replete with information supporting the Sanctions Order.

Defendant failed to respond to Plaintiffs’ initial discovery requests for three months,

leading to a consent order being entered in favor of Plaintiffs. While Defendant did

serve Plaintiffs with discovery responses within the designated timeframe of the

Consent Order, the record shows the responses failed to produce complete factual

information and asserted objections that had long been waived.         See Golding v.

Taylor, 19 N.C. App. 245, 248, 198 S.E.2d 478, 480 (1973) (“[I]n the absence of an



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extension of time, failure to object to interrogatories within the time fixed by the rule

is a waiver of any objection . . .” ); N.C. Gen. Stat. § 1A-1, Rule 33 (2015) (“[t]he party

upon whom the interrogatories have been served shall serve a copy of the answers,

and objections if any, within 30 days after the service of the interrogatories . . . .”).

       Defendant argues the trial court abused its discretion by not making findings

of fact and conclusions of law regarding how its responses were deficient or

inconsistent with the Consent Order. Defendant fails to cite any authority supporting

the contention that a trial court is required to make findings regarding specific

discovery violations when imposing sanctions against a party.                Contrary to

Defendant’s assertion, Rule 52(a)(2) of the North Carolina Rules of Civil Procedure

states that “findings of fact and conclusions of law are necessary on decisions of any

motion . . . only when requested by a party . . . .” N.C. Gen. Stat. § 1A-1, Rule 52(a)(2)

(2015). Our Supreme Court has held it is within the discretion of the trial court

“whether to make a finding of fact if a party does not choose to compel a finding

through the simple mechanism of so requesting.” Watkins v. Hellings, 321 N.C. 78,

82, 361 S.E.2d 568, 571 (1987) (“It has been held repeatedly by this Court that ‘[w]hen

the trial court is not required to find facts and make conclusions of law and does not

do so, it is presumed that the court on proper evidence found facts to support its

judgment.’ ”) (alteration in original) (quoting Estrada v. Burnham, 316 N.C. 318, 324,




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341 S.E.2d 538, 542 (1986)). The record here does not reveal that Defendant asked

the trial court to make factual findings.

      We hold the trial court did not abuse its discretion by precluding Defendant

from offering into evidence documents not produced before the aforementioned date.

      B. Protective Order

      Defendant further argues that the trial court exceeded the scope of the

Sanctions Order by entering the Protective Order, preventing Defendant from

obtaining admissions from Plaintiffs. Defendant asserts that this sanction amounts

to a bar on Defendant’s ability to pursue discovery. This argument is without merit.

Defendant had ample opportunity to seek discovery prior to 19 January 2015. The

Protective Order was an effectuation of the Sanctions Order, which provided a further

extension of time to Defendant to provide long past due discovery responses. It was

within the trial court’s discretion to determine the scope of the Sanctions Order with

respect to later discovery requests. Accordingly, the trial court did not abuse its

discretion in entering the Protective Order.

      II.    Standing

      Defendant also challenges Plaintiffs’ standing to bring this action in their

capacities as the “Trustees of Parks Chapel.” Defendant argues Plaintiffs ceased to

be Trustees of Parks Chapel on 6 May 2010 following the merger of Parks Chapel into




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Kingdom Impact, and that because of this cessation Plaintiffs were divested of

standing. We disagree.

      Defendant’s argument misinterprets the capacity in which Plaintiffs bring this

suit. Defendant asserts that Parks Chapel ceased to exist following the merger, and

that Plaintiffs could not possibly have brought suit on behalf of a non-entity. But

Plaintiffs’ complaint specifically states the suit is being brought by Plaintiffs as

trustees of Parks Chapel, a “non-incorporated entity.” Defendant concedes in its

answer and counterclaim that Plaintiffs were trustees of Parks Chapel at all relevant

times. Regardless of the validity of the merger and the incorporation status of Parks

Chapel, Plaintiffs have the ability to bring a suit as trustees of a non-incorporated

religious organization seeking to assert property rights. See N.C. Gen. Stat. §§ 59B-

4, 59B-5, 59B-15, and 61-2 (2015).

      Although Defendant presented evidence by affidavit before the trial court that

raises a factual dispute about Frances Jackson’s status as a trustee of Parks Chapel,

Defendant presented no evidence raising a factual dispute regarding Plaintiffs’ status

as trustees of Parks Chapel. Plaintiffs’ claim is not dependent upon them comprising

all of the trustees of Parks Chapel, but merely upon Defendant’s failure to obtain the

consent of all trustees to transfer the Property.

      For more than two centuries, Chapter 61 of the North Carolina General

Statutes has provided special protections for real property owned by churches. N.C.



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Gen. Stat. § 61-2 provides that “[t]he trustees and their successors have power to . . .

take and hold property, real and personal, in trust for such church or denomination,

religious society or congregation; and they may sue or be sued in all proper actions,

for or on account of the . . . property so held or claimed by them . . . .” N.C. Gen. Stat.

§ 61-3 (2015) provides, inter alia:

             All glebes, lands and tenements, heretofore purchased,
             given, or devised for the support of any particular ministry,
             or mode of worship, and all churches and other houses built
             for the purpose of public worship, and all lands and
             donations of any kind of property or estate that have been
             or may be given, granted or devised to any church or
             religious denomination, religious society or congregation
             within the State for their respective use, shall be and
             remain forever to the use and occupancy of that church or
             denomination, societies or congregations . . . and the estate
             therein shall be deemed and held to be absolutely vested,
             as between the parties thereto, in the trustees respectively
             of such churches, denominations, societies and
             congregations, for their several use, according to the intent
             expressed in the conveyance . . . .

      North Carolina statute recognizes that real property can be held by an

unincorporated association.      “Real and personal property in this State may be

acquired, held, encumbered, and transferred by a nonprofit association, whether or

not the nonprofit association or a member has any other relationship to this State.”

N.C. Gen. Stat. § 59B-4. N.C. Gen. Stat. § 59B-15(a) further states that “[n]othing in

this Chapter changes the law with reference to the holding and conveyance of land

by the trustees of churches under Chapter 61 of the General Statutes where the land



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is conveyed to and held by the trustees.” Plaintiffs, as trustees of Parks Chapel, are

asserting a claim for real property held by them in trust for Parks Chapel.

Accordingly, we hold Plaintiffs have standing to bring this quiet title action.

       III.   Summary Judgment

       Lastly, Defendant argues that the trial court erred in granting Plaintiffs’

motion for summary judgment because there existed before the trial court some

evidence that raised genuine issues of material fact. We disagree.

       An appeal from an order granting summary judgment is reviewed de novo by

this Court. Andresen v. Progress Energy, Inc., 204 N.C. App. 182, 184, 696 S.E.2d

159, 160 (2010) (citation omitted). “Summary judgement is appropriate when there

is no genuine issues as to any material fact and any party is entitled to a judgment

as a matter of law.” Id. at 184, 696 S.E.2d at 160-61 (internal quotation marks and

citations omitted). “[A]n issue is genuine if it is supported by substantial evidence,

and . . . is material if the facts alleged would constitute a legal defense, or would affect

the result of the action, or if its resolution would prevent the party against whom it

is resolved from prevailing in the action[.]” DeWitt v. Eveready Battery Co., Inc., 355

N.C. 672, 681, 565 S.E.2d 140, 146 (2002) (internal quotation marks and citations

omitted). “Substantial evidence is such relevant evidence as a reasonable mind might

accept as adequate to support a conclusion, and means more than a scintilla or a

permissible inference[.]” Id. (internal quotation marks and citations omitted).



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      “The party moving for summary judgment bears the burden of establishing

that there is no triable issue of material fact.” Id. (citing Nicholson v. Am. Safety Util.

Corp., 346 N.C. 767, 774, 488 S.E.2d 240, 244 (1997)). “The movant may meet this

burden by proving that an essential element of the opposing party’s claim is non-

existent, or by showing through discovery that the opposing party cannot produce

evidence to support an essential element of his claim or cannot surmount an

affirmative defense which would bar the claim.” Collingwood v. General Elec. Real

Estate Equities, Inc., 324 N.C. 63, 66, 376 S.E.2d 425, 427 (1989) (citations omitted).

Once this burden is met, the nonmoving party must “produce a forecast of evidence

demonstrating that the [nonmoving party] will be able to make out at least a prima

facie case at trial” to avoid dismissal. Id. (citation omitted). “All inferences of fact

from the proofs offered at the hearing must be drawn against the movant and in favor

of the party opposing the motion.” Id. (citing Page v. Sloan, 281 N.C. 697, 190 S.E.2d

189 (1972)).

      “In order to establish a prima facie case for removing a cloud on title, a plaintiff

must meet two requirements: (1) plaintiff must own the land in controversy, or have

some estate or interest in it; and (2) defendant must assert some claim in the land

which is adverse to plaintiff’s title, estate or interest.” Chicago Title Ins. Co. v.

Wetherington, 127 N.C. App. 457, 461, 490 S.E.2d 593, 597 (1997) (citing Wells v.

Clayton, 236 N.C. 102, 107, 72 S.E.2d 16, 20 (1952)).



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      Here, Defendant failed to show any genuine issue as to material facts existed

or that Plaintiffs were not entitled to judgment as a matter of law. Defendant argues

that there remain questions regarding: (1) whether “corporate formalities” were

followed by Defendant related to the merger with Parks Chapel, including whether

adequate notice was provided prior to the meeting to vote on the withdrawal from the

Denomination; (2) whether a sufficient majority of the congregation of Parks Chapel

actually voted to withdraw from the Denomination and the Conference; and (3)

whether Frances Jackson, as a trustee of Parks Chapel, had authority to sign the

deed transferring the title from Parks Chapel to Defendant.

      Plaintiffs, as trustees of Parks Chapel, have standing to bring this action

pursuant to N.C. Gen. Stat. §§ 59B-4, 59B-5, 59B-15, and 61-2, regardless of the

validity of the merger and the vote to withdraw from the Denomination. These

factual disputes need not be resolved to affirm the trial court’s entry of summary

judgment in favor of Plaintiffs. Plaintiffs have shown that there is no evidence in the

record to support Defendant’s contention that Frances Jackson, acting alone, had sole

authority to transfer the Property. The undisputed evidence demonstrates that the

deed from Parks Chapel to Kingdom Impact was invalid because (1) the deeds

conveying the Property to the trustees of Free Will Baptist Church, predecessor to

Parks Chapel, included restrictive language requiring that the Property be used by a

church affiliated with the Denomination; (2) Parks Chapel, successor to Free Will



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Baptist Church, continued the church’s affiliation with the Denomination; and (3)

Kingdom Impact is not affiliated with the Denomination. The undisputed evidence

also demonstrates that France Jackson did not have sole authority to transfer the

Property without the signatures of all trustees.

      Because the purported transfer of real property to Kingdom Impact violated

real property statutes, the trial court did not need to resolve any factual dispute

regarding corporate governance to invalidate the transfer and enter summary

judgment quieting title in the Property to Plaintiffs.

                                     Conclusion

       For the above reasons, we hold that the trial court did not err in ordering

sanctions or in granting Plaintiffs’ motion for summary judgment because there did

not exist any genuine issues of material fact and Plaintiffs were entitled to judgment

as a matter of law. Accordingly, we affirm the trial court’s sanctions and order for

summary judgment.

      AFFIRMED.

      Judges BRYANT and TYSON concur.




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