                  IN THE SUPREME COURT OF MISSISSIPPI

                             NO. 2016-CA-01275-SCT

PRESBYTERY OF ST. ANDREW,
PRESBYTERIAN CHURCH U.S.A., INC.

v.

FIRST PRESBYTERIAN CHURCH PCUSA OF
STARKVILLE, MISSISSIPPI


DATE OF JUDGMENT:                      07/27/2016
TRIAL JUDGE:                           HON. H. J. DAVIDSON, JR.
TRIAL COURT ATTORNEYS:                 RYAN K. FRENCH
                                       DOLTON W. McALPIN
                                       P. SCOTT PHILLIPS
                                       HAROLD H. MITCHELL, JR.
                                       LLOYD J. LUNCEFORD
                                       ANDREW FRANK TOMINELLO
                                       EUGENE R. GROVES
COURT FROM WHICH APPEALED:             OKTIBBEHA COUNTY CHANCERY
                                       COURT
ATTORNEYS FOR APPELLANT:               P. SCOTT PHILLIPS
                                       ANDREW FRANK TOMINELLO
ATTORNEYS FOR APPELLEE:                RYAN K. FRENCH
                                       LLOYD J. LUNCEFORD
                                       DOLTON W. McALPIN
NATURE OF THE CASE:                    CIVIL - OTHER
DISPOSITION:                           AFFIRMED - 04/12/2018
MOTION FOR REHEARING FILED:
MANDATE ISSUED:

      EN BANC.

      RANDOLPH, PRESIDING JUSTICE, FOR THE COURT:

¶1.   First Presbyterian Church PCUSA of Starkville, Mississippi, (“FPC”) filed its

complaint for declaratory judgment, a temporary restraining order, and a preliminary
injunction in the Chancery Court of Oktibbeha County requesting legal protection and

injunctive relief against the Presbytery of St. Andrew Presbyterian Church U.S.A., Inc.

(“Presbytery”), after the Presbytery claimed FPC’s property was held in trust for the

Presbyterian Church in the United States of America (“PCUSA”). The chancery court

granted summary judgment in favor of FPC, finding no evidence of any trust, express or

implied. We affirm the finding of the chancery court.

       STATEMENT OF THE FACTS AND PROCEDURAL HISTORY

¶2.    FPC has occupied the same piece of land in central Starkville for more than 160 years,

as it was founded in 1821 as a Congregational Church and mission to the Western Frontier.

FPC holds title to six parcels of real property in Starkville – the most significant being the

main church facility. FPC acquired the main church property in 1837, through a deed of

conveyance to the “Trustees for the Presbyterian Church in the Town of Starkville.” In 1924

FPC constructed its current sanctuary on the property.

¶3.    FPC has transitioned into and out of multiple Presbyterian denominations, including

the Old School Presbyterian Church; the Presbyterian Church, Confederate States of

America; and the Presbyterian Church in the United States (“PCUS”). In 1983, the PCUS

merged with another Presbyterian denomination to create the Presbyterian Church in the

United States of America (“PCUSA”). FPC has been affiliated with the PCUSA since its

inception.

¶4.    FPC claimed that, although it was affiliated with several different Presbyterian

denominations, it existed as an “independent, unincorporated religious association from its



                                              2
founding until 2003.” On June 22, 2003, FPC’s governing board (its session) passed a

resolution declaring that “it is in the best interest of this association that it be forthwith

incorporated as a nonprofit corporation.” The resolution was approved by the congregation,

and FPC has remained an incorporated entity (First Presbyterian Church PCUSA of Starkille,

Mississippi) since that date.

¶5.    Following its incorporation, FPC conveyed to the corporation its main property and

facility in Starkville. The titleholder of record was then identified as FPC’s corporate entity.

Any property duly transferred to the corporation remains held by and titled in the name of

First Presbyterian Church, Starkville, Mississippi.

¶6.    Prior to 1982, no official documents of the PCUS included trust language. Moreover,

in 1953, PCUS adopted an official position unambiguously disclaiming any trust interest in

property and confirming that the beneficial interest in the property remained with the

congregation. In 1982, PCUS amended its constitution to include the word “trust.” Further,

a reservation provision was included with the adoption of the trust clause, which allowed a

local church not to be required to seek or obtain consent or approval of any other entity to

buy, sell, or mortgage the church’s property as a church of the PCUS.

¶7.    After the PCUSA was formed, the Book of Order contained a trust clause, and local

churches then were required to “obtain permission before selling, mortgaging, or otherwise

encumbering the property of that particular church.” Because this new trust clause was a

departure from prior practice, the PCUSA’s constitution allowed for a “property exception”

which provided as follows:



                                               3
       The provisions of this chapter shall apply to all congregations of the
       Presbyterian Church (U.S.A.). Except that any congregation which was not
       subject to a similar provision of the constitution of the church of which it was
       a part, prior to the reunion of the Presbyterian Church in the United States
       [PCUS] and the United Presbyterian Church in the United States of America
       [UPC] to form the Presbyterian Church (U.S.A.) [PC(USA)], shall be excused
       from the provision of this chapter if the congregation, within a period of eight
       years following the establishment of the Presbyterian Church (U.S.A.), vote
       to be exempt from such provision in a regularly called meeting and shall
       thereafter notify the Presbytery of which it is a constituent church of such vote.
       The particular church voting to be so exempt shall hold title to its property and
       exercise its privileges of incorporation and property ownership under the
       provisions of the Constitution to which it was subject immediately prior to the
       establishment of the Presbyterian Church (U.S.A.)[PC(USA)]. This paragraph
       may not be amended.

¶8.    In response to this “opt out” clause and a session meeting with a representative of the

presbytery, FPC voted to exempt itself by passing a resolution voting to opt out of the trust

clause. The resolution read that FPC

       does hereby vote to be exempt from the provisions of Chapter VIII of the Book
       of Order to which it was not subject prior to the Reunion which established
       PCUSA and will hold title to its property and exercise its privileges of
       incorporation under the Book of Church Order, PCUS (1982-1983 edition).

(Emphasis added.) FPC maintained this same position for the next few years, as evinced by

session minutes from a June 1989 meeting.

       Elder James Long brought it to the attention of the Session that he had talked
       with David Snellgrove at Presbytery regarding the property question and
       determined that in 1984 we passed a resolution at a Congregational Meeting
       to remain under the Old Book of Church Order. In the beginning of 1990
       Presbytery will publish a list of churches who opted to remain under the Old
       Book of Church Order. Elder Long further stated at the time of the resolution
       that the Transition Commission met and acted on the resolution. Elder Long
       has requested a copy of the minutes of this Commission which our name
       appears. At the present time there are three situations which could exist under
       the Old Book of Church Order.



                                               4
       1. If there was a split in the congregation, the Presbytery would decide which
       half would get the property.
       2. If our church is dissolved then Presbytery gets the property.
       3. If we pull out of the Presbyterian Church, we get our property.

       These are the three scenarios we are operating under. Rev. Parsons stated that
       he had re-submitted the request so as to cover this church in the eventuality
       that no action was taken earlier.

¶9.    When incorporating in 2003, and subsequently adopting bylaws, FPC placed in those

bylaws a reaffirmation of its intent to be exempt. In 2005 Session minutes, FPC reported that

it had submitted the following to the chief officer of the Presbytery:

       The Church By Laws were introduced and it was related that the bylaws will
       follow the Book of Church Order with the exception of retaining ownership of
       church property in the event the church dissolves. The property will not
       become property of the Presbytery.

(Emphasis added.)

¶10.   The Presbytery is a council of the church and a governance level. In Presbyterian

governance, the Presbytery is the central governing unit. Under the governing constitution

of the PCUSA, the local presbytery is responsible for waiving or seeking enforcement of any

property claims of the denomination against the local church.

¶11.   Due to increasing disagreement with the PCUSA, FPC voted to cease monetary

contributions to the Presbytery and look at the possibility of joining another Presbyterian

denomination. In response to schism in the membership of FPC, the Presbytery notified FPC

that it had appointed a Presbytery committee, called an Administrative Commission, to

“inquire into and settle difficulties” at FPC. The Administrative Commission was authorized

to fire the pastor, substitute itself for FPC’s elected leadership, and take over FPC’s property.



                                               5
¶12.   On March 22, 2015, FPC’s session passed a resolution authorizing the filing of a legal

action to determine the property rights of FPC, the Presbytery, and the PCUSA. FPC sought

a declaratory judgment recognizing FPC’s exclusive ownership of all property held by it or

in its name, free of any trust claimed by the PCUSA. FPC also requested a temporary

restraining order prohibiting the Presbytery from taking control or possession of FPC’s

property or from interfering with FPC’s property ownership.

¶13.   In response, the Presbytery argued that the historic polity of the Presbyterian Church

holds that when a congregation is in schism, as the Presbytery contends is the case at FPC,

its presbytery determines which faction receives the property, based on which faction is loyal

to its denomination of membership. The Presbytery contended that the Administrative

Commission’s goal was to effect reconciliation of the church’s members and to hold the

congregation together. According to the Presbytery, the Complaint was filed by “one faction

in the schism, who currently have a majority vote of the session and believe that they have

a majority of membership on their side.”

¶14.   The Presbytery asserted a counterclaim for declaratory relief that FPC is subject to

PCUSA’s Constitution, governance, and dispute-resolution procedures, resulting in dismissal

of the case or holding the case in abeyance indefinitely pending review by PCUSA. In the

alternative, PCUSA asked the court to declare that the subject property was held in trust for

the use and benefit of the Presbytery of St. Andrew. The Presbytery also sought injunctive

relief, enjoining FPC from encumbering, selling, divesting, or otherwise transferring any

property until such time as the Presbytery makes a determination of the issues related to FPC.



                                              6
¶15.   On May 11, 2015, after a hearing, the Oktibbeha County Chancery Court entered a

Preliminary Injunction for all property held by FPC against the Presbytery, enjoining the

Presbytery from taking any action affecting the property rights of FPC. The Presbytery also

was enjoined from asserting a trust over FPC’s property.

¶16.   The parties filed competing motions for summary judgment and presented argument

to the chancellor. FPC argued that the only disputed issue was whether FPC owns its

property, while the Presbytery argued two issues – (1) does the Presbytery have a trust

interest in FPC’s property, and (2) does the First Amendment permit entry of an injunction

barring PCUSA from exercising its ecclesiastical authority. After the hearing, the chancellor

granted FPC’s motion. The chancellor stated the issue to be determined as “who is entitled

to or controls the real property occupied by FPC.” Specifically, the chancellor was tasked

with determining the relationship between the local church (FPC) and the parent church

(PCUSA) and whether that relationship gave rise to a trust property interest in PCUSA to

FPC’s property. While the Presbytery argued that it considered FPC’s property to be held in

trust for the PCUSA, FPC argued that its past affiliation with PCUSA did not entail a trust-

clause provision.

¶17.   The chancellor determined that it was undisputed that FPC had obtained the deeds of

conveyance and paid all consideration for titles to the various properties at issue. The

chancellor ascertained that no trust provisions existed in any of those deeds. He also

determined that no express trust agreements existed outside the deeds between the parties.

The chancellor found no evidence that there was any intention to create a trust relationship.



                                             7
“There are no documents presented whereby resolutions were properly passed or votes were

taken to establish a written express trust or of any indication whatsoever, that there was any

mention of even an oral express trust.” The chancellor concluded that:

       there was and is no traditional express trust applicable herein in the documents
       of title, nor any legally enforceable and separate traditional trust instrument
       that would operate to vest a beneficial interest in and over the legally titled
       property of FPC to PCUSA.

The chancellor also found there was no constructive trust as implied by law based on the

facts as agreed upon by the parties. Based on the evidence presented, the chancellor

concluded that FPC clearly intended to hold title to its property.

                                        ISSUES

¶18.   On appeal, the Presbytery raises the following two issues:

       I.       Whether the chancery court erred as a matter of law in determining the
                Presbytery did not have a trust interest in the real and personal property
                of FPC.

       II.      Whether entry of the preliminary injunction violated its rights under the
                First Amendment to the United States Constitution by barring the
                Presbytery from exercising jurisdiction over a member congregation of
                its denomination and, further, from disciplining its members and
                ministers from violating church doctrine.1

                                 STANDARD OF REVIEW

¶19.   This Court applies a de novo standard of review to a chancellor’s grant of summary

judgment. Alfonso v. Gulf Publ’g Co., 87 So. 3d 1055, 1060 (Miss. 2012). If, upon review

of all pleadings, depositions, interrogatory answers, and admissions on file, there is no

genuine issue of material fact, summary judgment in favor of the moving party is proper.

       1
           This argument is now moot, for FPC is no longer a member of the PCUSA.

                                                8
M.R.C.P. 56(c). All evidentiary matters must be viewed in the light most favorable to the

nonmoving party. Evan Johnson & Sons Constr., Inc. v. State, 877 So. 2d 360, 364 (Miss.

2004).

                                          ANALYSIS

         Whether the chancery court erred as a matter of law in determining the
         Presbytery did not have a trust interest in the real and personal property
         of FPC.

¶20.     Mississippi has adopted the “neutral principles of law” approach for resolving church

property disputes. See Schmidt v. Catholic Diocese of Biloxi, 18 So. 3d 814, 824 (Miss.

2009); Church of God Pentecostal, Inc. v. Freewill Pentecostal Church of God, Inc., 716

So. 2d 200, 206 (Miss. 1998).

         The neutral-principles approach “relies on objective, traditional concepts of
         trust and property law. . . .” Id. at 205. “It calls ‘for the completely secular
         examination of deeds to the church property, state statutes and existing local
         and general church constitutions, by-laws, canons, Books of Discipline and the
         like. . . .’ ” Id. (quoting Protestant Episcopal Church in Diocese of N.J. v.
         Graves, 83 N.J. 572, 417 A.2d 19, 23 (N.J. 1980), cert. denied sub nom.
         Moore v. Protestant Episcopal Church in Diocese of N.J., 449 U.S. 1131,
         101 S. Ct. 954, 67 L. Ed. 2d 119 (1981)). Religious documents must be
         carefully scrutinized in purely secular terms without relying on religious
         precepts. Church of God Pentecostal, 716 So. 2d at 205-06 (citing [Jones v.]
         Wolf, 443 U.S. [595,] 604, 99 S. Ct. 3020, [61 L. Ed. 2d 775 (1979)]). If a
         deed, corporate charter, or religious document incorporates religious concepts
         in its provisions concerning ownership of the property, the court must defer to
         the authority of the ecclesiastical body so as to avoid resolving any religious
         controversy. Wolf, 443 U.S. at 604, 99 S. Ct. 3020 (citing Serbian Eastern
         Orthodox Diocese [v. Milivojevich], 426 U.S. [696,] 709, 96 S. Ct. 2372, [49
         L. Ed. 2d 151 (19760]).

Schmidt, 18 So. 3d at 824.

¶21.     As the chancellor held, the underlying reason for the schism among FPC members and



                                                9
between FPC and the Presbytery is not the issue before this Court. The only issue to be

decided is whether PCUSA ever had a trust interest in FPC’s property. We find that the

chancellor properly found that it did not.

¶22.   FPC argues that no trust exists, whether express or implied, constructive or resulting.

FPC relies on the “opt out” provision and other documents to support its position that no trust

was ever created. The Presbytery argues the FPC agreed to be bound by PCUS’s inclusionary

trust amendment and that FPC’s continued allegiance to the higher church through the

adoption of the Constitution and Book of Order, and acceptance of the benefits of its

affiliation supports the enforceability of the trust interest.

¶23.   Generally, trusts are classified under two broad categories: (1) express trusts and (2)

implied trusts. Mississippi law requires that “no trust of or in any real property can be created

except by written instrument signed by the party who declares or creates such trust. . . .”

Miss. Code Ann. § 91-8-407 (Rev. 2013). Neither party asserted the existence of any writing

signed by the proper FPC officials after authorization that satisfies Section 91-8-407, whether

by original deed or separate trust instrument. Likewise, no declaration of trust is filed in the

land records of Oktibbeha County, Mississippi, as provided by Section 91-8-407(b)(2).

¶24.   No express trusts were entered into by the parties under traditional Mississippi trust

law. No reference exists in any deed to creation of a trust relationship. It follows that no clear

expression of an intent to create a trust exists, nor any reference even to the term “trust.”

Neither party has asserted the opposite. Likewise, no separate document such as a trust

instrument exists in writing. Again, neither party asserts the contrary.



                                               10
¶25.   None of the elements of creation of an express trust are present, such as the writing,

the clear intent of the trustor, or the confirming authority of creation of a trust and the

transfer of property by the governing body. See Church of God Pentecostal, 716 So. 2d at

208. Therefore, no traditional express trust nor any legally enforceable and separate

traditional trust instrument exists or existed that would operate to vest a beneficial interest

in and over the legally titled property of FPC to PCUSA.

¶26.   While an express trust must be written, implied trusts differ in that they arise by

implication of the law or are presumed from the circumstances. Mississippi recognizes two

types of implied trusts: (1) constructive trusts and (2) resulting trusts.

¶27.   A constructive trust is a judicially imposed remedy used to prevent unjust enrichment

when one party wrongfully retains title to property. McNeil v. Hester, 753 So. 2d 1057, 1064

(Miss. 2000). FPC purchased the property at issue. No evidence exists that PCUSA invested

any funds into the acquisition of any of the parcels of land. No evidence of any documents,

oral conversations, minutes, or other written or oral supporting evidence exists that any

arrangement of trust was contemplated in the tradition of a constructive trust.              No

constructive trust is implied by law based on the facts as agreed upon by the parties.

¶28.   A resulting trust “is designed to give effect to the unwritten but actual intention of the

parties at the time of the acquisition of title to the affected property.” Robert E. Williford,

Trusts, 8 Encyclopedia of Mississippi Law § 73:2, 422 (2001). Additionally, Section 91-8-

407(a)(2) specifically requires the intention to create a trust. When FPC incorporated in 2003,

no intention to create a trust or create an express trust relationship existed. Furthermore, it



                                              11
is clear that PCUS disclaimed any interest in church trust property until just before the

merger forming PCUSA. Although a trust provision was placed in the constitution when

PCUSA was formed, the local churches were granted the right to opt out of that provision.

FPC took measures on several different occasions to exercise its right to opt out. It did so

in session meetings and bylaws of incorporation; it did so with reassurances by officers of

PCUSA that compliance with the opt-out would allow FPC to hold title to its property. It is

reasonable to conclude the consistent position of FPC as representative of its intent that FPC

wanted to remain, as it always had, the owner of its property. There is no evidence of a

resulting trust.

                                      CONCLUSION

¶29.   Today’s case does not present a doctrinal dispute, and this Court is authorized to

exercise jurisdiction under neutral principles of law. The continued affiliation of FPC with

PCUSA since the merger was based on FPC’s belief that it had availed itself of the eight-

year-opt-out provision given it by PCUSA. FPC’s provision that it “will hold title to its

property” is clear evidence of its intent. We find that no express or implied trust existed

between the parties.

¶30.   AFFIRMED.

     WALLER, C.J., COLEMAN, MAXWELL, BEAM, CHAMBERLIN AND
ISHEE, JJ., CONCUR. KING, J., DISSENTS WITH SEPARATE WRITTEN
OPINION JOINED BY KITCHENS, P.J.

       KING, JUSTICE, DISSENTING:

¶31.   The chancellor and the majority rely on an incorrect interpretation of the “opt-out”



                                             12
provision and of PCUS church rules to determine that PCUSA has no resulting trust interest

in FPC’s property. PCUSA does have a resulting trust interest in the property and,

accordingly, I respectfully dissent.

¶32.   The majority asserts that “it is clear that PCUS disclaimed any interest in church trust

property until just before the merger forming PCUSA.” Maj. Op. at ¶ 28. This is incorrect.

As early as 1925, the PCUS Book of Church Order required that title to the property of

dissolved churches must be conveyed to the Presbytery. By 1950, several local churches had

included in their charters provisions that completely disclaimed any property rights of PCUS

in their church property. The General Assembly considered these charters and determined

that they were “contrary to and in violation of the historic practice and polity of the

Presbyterian Church in the United States and, if upheld by the civil courts, would make it

possible for ‘such churches’ to withdraw from the Presbyterian Church in the United States

with their property at their own discretion.” It concluded that local churches do not have

absolute ownership of their property without reference to the denomination. In 1953, the

General Assembly adopted a declaratory statement that, while a particular congregation

enjoyed the beneficial use of its property, church property must not be used in violation of

the obligation of the congregation to the PCUS. In 1965, a PCUS publication emphasized

that “[t]he Church has refused to affirm that the property of a congregation belongs to that

congregation absolutely and without any relation to the Church as a whole.” In 1971, the

General Assembly adopted a declaratory statement reaffirming its commitment to the 1953

statement, acknowledging that the civil laws of the State in which the property is situated



                                             13
may be applicable, but stating its belief that “[g]enerally, however, the civil courts concluded

that a congregation belonging to a religious denomination and subject to the constitution,

faith, and doctrines thereof, cannot use its property for a purpose which violates the

relationship of the congregation to the denomination.”2

¶33.   When the PCUS was working to amend the Book of Church Order in the early 1980s

to add the explicit term “trust” to its property chapter, the PCUS Stated Clerk sent a letter to

all pastors and clerks of session. He reaffirmed that the trust provision merely explicitly set

forth the traditional position of the PCUS, and purported to “sharpen the point made in the

1971 statement.” He noted that the property amendments “are not related to the work of the

Joint Committee on Presbyterian Reunion – they would have been written in the same

language, and introduced at this time, if there were no reunion plans under consideration.”

He also reassured the recipients that the Plan for Reunion had a grandfather clause “under

which PCUS churches would remain subject to tranditional PCUS provisions dealing with

ownership, sale, and mortgaging of property in perpetuity.” (Emphasis added.) He noted

that the amendments were “essential” due to the United States Supreme Court’s decision in

Jones v. Wolf, noting that “the action of the civil courts leaves us no choice except to amend

our provisions for holding property[.]”

¶34.   Jones v. Wolf involved a dispute between majority and minority factions of a local

       2
        Before the United States Supreme Court’s 1979 Jones v. Wolf opinion, “courts
normally resolved property disputes in hierarchical denominations simply by deferring to the
decision of the general church’s ecclesiastical authorities.” Presbytery of Greater Atlanta,
Inc. v. Timberridge Presbyterian Church, Inc., 719 S.E.2d 446, 457-58 (Ga. 2011),
certiorari denied by Timberridge Presbyterian Church, Inc. v. Presbytery of Greater
Atlanta, Inc., 567 U.S. 916, 132 S. Ct. 2772, 183 L. Ed. 2d 638 (2012).

                                              14
PCUS church. Jones v. Wolf, 443 U.S. 595, 99 S. Ct. 3020, 61 L. Ed. 775 (1979). The

Court noted that “the provisions of the constitution of the general church, the Book of

Church Order, concerning the ownership and control of property failed to reveal any

language of trust in favor of the general church.” Id. at 601. “What has happened over the

years since Jones v. Wolf is that many hierarchical denominations have added more explicit

property provisions to their general and local church governing documents, as the Supreme

Court said would be appropriate.” Presbytery of Greater Atlanta, Inc. v. Timberridge

Presbyterian Church, Inc., 719 S.E.2d 446, 458 (Ga. 2011), certiorari denied by

Timberridge Presbyterian Church, Inc. v. Presbytery of Greater Atlanta, Inc., 567 U.S.

916, 132 S. Ct. 2772, 183 L. Ed. 2d 638 (2012). Thus, instead of silence on the issue in these

documents, “we find provisions showing either that the general church does not control local

church property, . . . or, as in this case and others, provisions showing that local church

property is held in trust for the general church.” Id. The PCUS’s 1982 amendment was

clearly a reaction to what the PCUS saw as a misinterpretation of its church law by the

courts; it thus added the explicit trust provision in order to protect its interests in the civil

courts. FPC participated in the process to pass the amendments3 and was governed by them

when approved in 1982, choosing not to leave the denomination.

¶35.   The 1982 PCUS trust provision, which governs FPC’s property, provides that

       All property held by or for a particular church, whether legal title is lodged in
       a corporation, a trustee or trustees, or an unincorporated association, and

       3
       FPC representatives did vote against the amendments, but after they were adopted,
the church remained in the denomination, indicating its assent to be governed by the
amendments despite initial disagreement.

                                               15
       whether the property is used in programs of the particular church or retained
       for the production of income, is held in trust nevertheless for the use and
       benefit of the Presbyterian Church in the United States.

The 1982 PCUS Book of Church Order also provides that

       If a particular church is dissolved by the Presbytery, attempts by either
       majority or unanimous vote to withdraw from the Presbyterian Church in the
       United States or otherwise ceases to exist or function as a member of the
       Presbyterian Church in the United States, any property that it may have shall
       be within the control of the Presbytery and may be held for designated
       purposes or sold or disposed of in such manner as the Presbytery, in its
       discretion, may direct.

The 1982 PCUS Book of Church Order states that

       The relationship to the Presbyterian Church in the United States of a particular
       church can be severed only by constitutional action on the part of the
       Presbytery . . . . If there is a schism within the membership of a particular
       church and the Presbytery is unable to effect a reconciliation or a division into
       separate churches within the Presbyterian Church of the United States . . . , the
       Presbytery shall determine if one of the factions is entitled to the property
       because it is identified by the Presbytery as the true church within the
       Presbyterian Church in the United States. . . .

The 1982 PCUS Book of Church Order clarifies that

       Nothing in this chapter shall be construed to require a particular church to seek
       or obtain the consent or approval of any church court above the level of the
       particular church in order to buy, sell or mortgage the property of that
       particular church in the conduct of its affairs as a church of the PCUS.

¶36.   The PCUSA Book of Order contains a similar trust provision to that contained in the

1982 PCUS Book of Church Order:

       All property held by or for a congregation, a presbytery, a synod, the General
       Assembly, or the Presbyterian Church (U.S.A.), whether legal title is lodged
       in a corporation, a trustee or trustees, or an unincorporated association, and
       whether the property is used in programs of a congregation or of a higher
       council or retained for the production of income, is held in trust nevertheless
       for the use and benefit of the Presbyterian Church (U.S.A.).

                                              16
But, in contrast to the 1982 PCUS Book of Church Order, the PCUSA Book of Order further

provides that

       A congregation shall not sell, mortgage, or otherwise encumber any of its real
       property and it shall not acquire real property subject to an encumbrance or
       condition without the written permission of the presbytery transmitted through
       the session of the congregation.

It also states that

       A congregation shall not lease its real property used for purposes of worship,
       or lease for more than five years any of its other real property, without the
       written permission of the presbytery transmitted through the session of the
       congregation.

¶37.    The difference between the PCUS rules on property and the PCUSA rules on property

is that congregations under the PCUS rules may exercise property rights without the approval

of the denomination, while PCUSA rules forbid the congregation from buying, selling,

leasing, or encumbering their property without denominational permission. Buying, selling,

leasing, or encumbering the property is not at issue here. The longstanding tradition of both

PCUS and PCUSA is that congregational property is held in trust for the denomination in the

event of a congregational schism, dissolution, or situation in which the property is used in

violation of the congregation’s obligations to the denomination. PCUS was merely more

hands-off about the beneficial use of property than is PCUSA, and that is what the opt-out

provision accomplished: a church opting out of the property chapter did not have to obtain

permission to buy, sell, or encumber property. While FPC opted out of the property

provisions of the PCUSA Book of Order, “it plainly could not opt out of the property trust

provision in Section G-8-0201, which mirrored the one in Section 6.3 of the PCUS Book of

                                             17
Church Order.” Presbytery of Greater Atlanta, 719 S.E.2d at 455-56. Indeed, the opt-out

provision specifically provided that in opting out of the PCUSA property provision, a church

“shall hold title to its property and exercise its privileges of incorporation and property

ownership under the provisions of the Constitution to which it was subject immediately prior

to the establishment of the” PCUSA. That Constitution, according to FPC’s own resolution

to become a member of the PCUSA, was “the provisions of the Book of Church Order,

Presbyterian Church in the United States (1982-1983 edition)[.]” The 1982-1983 PCUS Book

of Church Order explicitly contained a trust provision in favor of the denomination.

Moreover, FPC’s “act of affiliating with the PCUSA . . . with the trust provision already in

its governing constitution demonstrated that [FPC] assented to that relinquishment of its

property rights – rights it then chose not to reassert by leaving the new national church during

the next eight years” as it could have opted to do.4 Id. at 456. The incorporation of FPC in

2003 further bolsters its assent to and membership in the PCUSA, with the application for

incorporation noting that incorporation was being sought in compliance with the Constitution

of the Presbyterian Church (U.S.A.).

¶38.   Accordingly, PCUSA has a resulting trust interest in the property at issue. I would

reverse the chancellor’s order granting summary judgment in favor of FPC and remand the

case for further proceedings.

       KITCHENS, P.J., JOINS THIS OPINION.

       4
         The Reunion Articles of Agreement provided that any PCUS congregation had the
right to seek dismissal from the new denomination while retaining title to its property. This
right expired eight years after reunion. FPC did not avail itself of this provision, and
remained a PCUSA member.

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