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15-P-839                                              Appeals Court

 ROMAN CATHOLIC ARCHBISHOP OF BOSTON      vs.   JON ROGERS & others.1


                              No. 15-P-839.

           Norfolk.       July 22, 2015. - October 14, 2015.

               Present:    Vuono, Carhart, & Blake, JJ.


Religion. Church. Jurisdiction, Ecclesiastical controversy.
     Real Property, Trespass. Trespass. Practice, Civil,
     Motion to dismiss, Jury trial, Standing, Continuance,
     Injunctive relief.



     Civil action commenced in the Superior Court Department on
March 10, 2015.

     A motion to continue was heard by Edward P. Leibensperger,
J., and the case was heard by him.


    Mary Elizabeth Carmody for the defendants.
    William J. Dailey, Jr., for the plaintiff.


    1
       Friends of St. Frances X. Cabrini, Inc. (Friends); Mary
Ellen Rogers, individually and as vice president of Friends;
Margaret O'Brien, individually and as clerk of Friends; Nancy
Shilts, individually and as treasurer of Friends; John Doe 1 to
6; Mary Roe 1 to 6; other John Does and Mary Roes; and all other
persons acting at the direction of or in concert with said
defendants.
                                                                      2



     CARHART, J.   This case arises from the suppression of St.

Frances X. Cabrini Church in Scituate (church).2     The defendants

are former parishioners of the church who have maintained an

around-the-clock, seven-days-per-week vigil since the decree of

suppression entered in October, 2004.    In February, 2015, the

Roman Catholic Archbishop of Boston (RCAB) notified the

defendants that they must end their vigil and leave the church

or face legal action.   The defendants refused to leave and the

RCAB instituted this action for declaratory and injunctive

relief.   Following a bench trial before a judge in the Superior

Court, judgment entered against the defendants declaring them to

be trespassers and permanently enjoining them from entering on

church property.   This appeal followed.3

     On appeal, the defendants argue that the judge made several

erroneous pretrial rulings, including denying their motion to

dismiss and declining their demand for a jury trial.     They

further contend that facts found by the judge in support of the

trespass claim were clearly erroneous.      We affirm.



     2
       "'Suppression' is a term of the Roman Catholic Code of
Canon Law, which means to end the existence of a parish."
Maffei v. Roman Catholic Archbishop of Boston, 449 Mass. 235,
236 n.3 (2007).
     3
       A stay of judgment was entered by a single justice of this
court. The parties agreed to an expedited briefing and hearing
schedule.
                                                                    3


     Background facts.   We outline the relevant facts, reserving

discussion of some facts for the issues raised.

     The RCAB is a corporation sole organized under c. 506 of

the Acts of 1897.   It is the record owner of the property

located at 27-31 Hood Road, Scituate, on which the church

stands.   In May, 2004, the Archbishop of Boston, Cardinal Seán

O'Malley, announced that the church would be closed as part of

the RCAB's ongoing "reconfiguration process."    He issued a

decree suppressing the church on October 5, 2004, which became

effective on October 29, 2004.    Under the Universal Law of the

Roman Catholic Church (canon law), the suppression of the church

meant that the church no longer was part of a designated Roman

Catholic parish.

     In July, 2005, the defendants commenced a civil action

against the RCAB, seeking a declaration that the RCAB holds the

church in trust under G. L. c. 67, §§ 44-46, for the sole

benefit of the parishioners.4    A judge in the Superior Court

allowed the RCAB's motion to dismiss the defendants' complaint

for failure to state a claim upon which relief can be granted.

The judgment was affirmed by a panel of this court in an

unpublished decision issued pursuant to our rule 1:28.     Rogers



4
  The defendants also sought an order enjoining the RCAB from
disposing of the church or its surrounding properties.
                                                                    4


v. Roman Catholic Archbishop of Boston, 72 Mass. App. Ct. 1117

(2008) (Rogers I).

    In June, 2014, the Vatican's highest court notified the

parties that it had denied the defendants' final appeal from the

RCAB's decisions to close the parish and to deconsecrate the

church.   Cardinal O'Malley then asked the parishioners to end

the vigil and leave the property.   On February 3, 2015, the RCAB

sent the defendants a formal notice to vacate the church on or

before March 9, 2015, or face legal action.   The defendants

refused, and on March 10, 2015, the RCAB brought this action

seeking a declaration that the defendants are unlawful

trespassers.   The RCAB also sought a preliminary injunction.

    Following a hearing, a judge in the Superior Court

consolidated the RCAB's request for a preliminary injunction

with a trial on the merits, see Mass.R.Civ.P. 65(b)(2), 365

Mass. 832 (1974), and scheduled a trial date within thirty days.

In a written memorandum of decision and order, the judge

explained that his "principal reason for ordering consolidation

is that the issues for trial are straightforward and limited";

to be entitled to relief, the RCAB must demonstrate a right to

possession of the church and the defendants' intentional

invasion of that right.   The judge limited the proof at trial to

RCAB's right of possession, stating that "[t]he trial will not

concern defendants' alleged further appeal within the
                                                                    5


ecclesiastical process regarding the closing of the parish or

ownership of the [c]hurch . . . [or] the application or

interpretation of canon law."   The judge also precluded evidence

or argument that the defendants are equitable owners of the

church, concluding that such matters already had been addressed

in Rogers I.

    The defendants thereafter filed an emergency motion to

continue the trial date and to set a pretrial schedule, arguing

that they needed more than thirty days to prepare for trial and

to determine if the Attorney General should be joined as a

necessary party pursuant to Mass.R.Civ.P. 19, 365 Mass. 765

(1974).   The defendants answered the verified complaint,

asserting as affirmative defenses that (1) the judge should

abstain from deciding the case while the defendants' appeals to

the Vatican were pending; (2) the RCAB violated fiduciary duties

owed to the defendants; (3) under canon law, the defendants are

equitable owners of the church and therefore they are not

trespassers; (4) the RCAB is violating the defendants' rights of

the free exercise of religion; (5) the claim is barred by the

doctrines of laches and unclean hands; and (6) the claim is

barred by the statute of limitations.   The defendants also

counterclaimed for money spent maintaining the church during the

vigil and sought a jury trial on all of their defenses and the

counterclaim.
                                                                   6


    On April 3, 2015, after a hearing on the emergency motion,

the judge denied the defendants' demand for a jury trial on the

basis that the RCAB was seeking equitable relief only.   He

denied additional discovery "because [he did not] think there's

even a contest over what the archdiocese is expecting to put

into evidence, which is that they have the record title to the

property," and he also denied the defendants' request to depose

Cardinal O'Malley.   The judge allowed the defendants to present

evidence in support of their defense of laches but denied their

emergency motion to delay the trial.

    On April 22, 2015, the defendants filed a "Motion to

Dismiss Pursuant to Mass.R.Civ.P. 12(b)(1) and Alternatively,

Motion for Reconsideration of the Court's Order Excluding Any

Evidence of Canon Law."   The defendants argued that the court

lacked jurisdiction because the case presented an ecclesiastic

dispute and that, if the judge continued to assert jurisdiction,

the defendants should be allowed to present evidence of canon

law in support of their defense that they are equitable owners

of the church.   The defendants also filed a motion in limine

regarding the testimony of Cardinal O'Malley.   On April 28,

2015, the RCAB moved to dismiss the counterclaim.   In pretrial

orders, the judge denied the defendants' motion to reconsider

his ruling that canon law would not be considered at trial;

ordered that the defendants' proposed witness list be narrowed;
                                                                   7


precluded evidence that the defendants are the equitable owners

of the church, based on their lack of standing; and denied the

defendants' motion in limine regarding the testimony of Cardinal

O'Malley, concluding that his testimony was not required on the

defense of laches because there was no dispute that the RCAB

knew of the vigil in 2004 and did not take legal action until

2015.    The judge reserved argument on the motions to dismiss

until the day of trial.

     After a one-day bench trial, which took place on May 5,

2015, the judge issued a thoughtful and comprehensive memorandum

of decision and order denying the defendants' motion to dismiss,

allowing the RCAB's motion to dismiss the counterclaim,

directing entry of a declaration that the defendants and those

acting in concert with them are trespassers, and permanently

enjoining the defendants and those acting in concert with them

from entering the premises of the church, and judgment entered

accordingly.

     The defendants filed a notice of appeal dated May 22, 2015,

from the judgment, the judge's memorandum and order for

judgment, and all other pretrial rulings.5   The defendants also


     5
       Specifically identified in the notice of appeal are the
judge's order on the scope of trial, the denial of the emergency
motion to continue trial date and to set a pretrial schedule, a
pretrial order dated April 2, 2015, and the judge's March 27,
2015, order on the RCAB's motion for preliminary injunction.
                                                                     8


moved to suspend the injunction pending appeal, pursuant to

Mass.R.Civ.P. 62(c), 365 Mass. 829 (1974).     After that motion

was denied, the defendants applied to a single justice of this

court for an order suspending the injunction during the pendency

of their appeal.   See Mass.R.A.P. 6(a), as appearing in 454

Mass. 1601 (2009); Packaging Indus. Group, Inc. v. Cheney, 380

Mass. 609, 614 (1980).    The application was approved on June 3,

2015, and a stay issued that day.    On July 22, 2015, a panel of

this court heard oral argument.

    Discussion.    1.    Subject matter jurisdiction.    The

defendants sought dismissal of the complaint on the ground that

their defenses to the civil trespass claim necessarily involve

interpretation of canon law.    Concluding that the issue of a

property owner's right to determine who may be on the property

could be resolved using "neutral principles of law," the judge

denied the motion to dismiss and exercised jurisdiction.

    There was no error.     Massachusetts courts "have

jurisdiction over church property disputes if and to the extent,

and only to the extent, that they are capable of resolution

under 'neutral principles of law' -- which the United States

Supreme Court has defined as 'well-established concepts of trust

and property law familiar to lawyers and judges.'"       Maffei v.

Roman Catholic Archbishop of Boston, 449 Mass. 235, 243-244

(2007) (Maffei), quoting from Jones v. Wolf, 443 U.S. 595, 603
                                                                   9


(1979).   "Thus, if a dispute can be resolved without inquiry

into matters of religious doctrine or polity, a court may

examine such sources as '(a) statutory provisions governing the

holding of property by religious corporations; (b) the

constitutions and by-laws of the religious organization

involved, especially in so far as they pertain to the ownership

and control of church property; and (c) the deeds to the

property in question,' to resolve the dispute."    Fortin v. Roman

Catholic Bishop of Worcester, 416 Mass. 781, 786, cert. denied,

511 U.S. 1142 (1994) (Fortin), quoting from Antioch Temple, Inc.

v. Parekh, 383 Mass. 854, 867 (1981).

     Here, the judge could determine record ownership of the

church and its surrounding property by examining the deeds and

expert affidavits from both parties.     He could look to St. 1897,

c. 506, to determine the extent to which the RCAB owns the

church and is entitled to possession.6    A claim for trespass

"depends upon the consent of the owner," Gage v. Westfield, 26

Mass. App. Ct. 681, 695 n.8 (1988), an issue the judge could

decide by reference to documents already present in the record

before him, and without delving into religious doctrine.     In

     6
       Under St. 1897, c. 506, § 2, the RCAB is "empowered to
receive, take and hold, by sale, gift, lease, devise or
otherwise, real and personal estate of every description, for
religious, charitable and burial purposes, and to manage and
dispose of the same for the religious and charitable purposes of
the Roman Catholic Church."
                                                                    10


short, the judge could determine who owned the property and

whether or not there was a "wrongful entry," Dilbert v. Hanover

Ins. Co., 63 Mass. App. Ct. 327, 332 (2005), using "objective,

well-established concepts of trust and property law," Fortin,

supra at 788.   As such, there was no error in the judge's

decision to apply the neutral principles of law approach and

exercise jurisdiction.

     The defendants' affirmative defenses could not change this

result.   While the defendants assert that they are not

trespassers because they are equitable owners of the church

under canon law and that they have a right of entry under Canon

1214,7 "[w]e may not . . . examine the actual status or

disposition of church property under canon law, or . . . attempt

to interpret any particular provision of canon law."8     Maffei,

449 Mass. at 244.   Any civil claim to equitable ownership of the


     7
       The defendants state that Canon 1214 provides as follows:
"[b]y term church is understood a sacred building designated for
divine worship to which the faithful have the right of entry for
the exercise, especially the public exercise, of divine
worship." The quoted language apparently derives from an
affidavit filed in the case of Roman Catholic Archbishop of
Springfield vs. Anop, Sup. Ct., No. 2011-831 (Feb. 3, 2012)
(Moriarty, J.) (Anop). No affidavit was filed in this action
regarding Canon 1214, but the judge addressed the issue because
it was discussed in Anop, supra. We decline to address the
issue other than to note that Anop is distinguishable on its
facts.
     8
       For this reason, there was no error in the judge's
declining to consider the defendants' evidence of canon law.
                                                                       11


church was barred for lack of standing, see id. at 245; Rogers

I, 72 Mass. App. Ct. 1117,9 and there was no error in denying the

defendants' motion to dismiss.10

       2.    Trespass claim.   The defendants next maintain that the

judge's findings of fact on the trespass claim are clearly

erroneous and must be set aside.       The judge found that the RCAB

is the owner of the property that includes the church, that it

has actual possession of the church, and that the "defendants

are intentionally entering and staying on RCAB's property

without permission, justification or excuse."

       "[W]e accept the judge's findings of fact as true unless

they are clearly erroneous," Kendall v. Selvaggio, 413 Mass.

619, 620 (1992), giving "due regard . . . to the opportunity of

the trial court to judge of the credibility of the witnesses,"

Mass.R.Civ.P. 52(a), 365 Mass. 816 (1974).       While we "do not

review questions of fact if any reasonable view of the evidence

and the rational inferences to be drawn therefrom support the

judge's findings," we review de novo the judge's conclusions of

law.       Martin v. Simmons Properties, LLC, 467 Mass. 1, 8 (2014).


       9
       Thus, we need not address the defendants' claim that the
judge improperly applied res judicata to preclude evidence of
their equitable ownership defense.
       10
       We note, as did the trial judge, that the defendants
previously invoked the court's jurisdiction when they brought
suit against the RCAB in 2005.
                                                                  12


     We see no error in the judge's factual findings, all of

which are supported by the record.   Experts for the RCAB as well

as the defendants opined that the RCAB holds title to the

properties at issue,11 and it is well settled that possession

under claim of title constitutes legal seisin.   Perry v. Weeks,

137 Mass. 584, 590 (1884).   "There was ample evidence that at

the time of the trespasses the [RCAB] had not only the

possession that constructively followed the title . . . but

actual possession," Stone v. New England Box Co., 216 Mass. 8,

11 (1913), including testimony that, from 2004 to present, RCAB

representatives have visited the property, hired landscapers and

snow removers, paid real estate taxes, utility, and alarm system

bills, and overseen and paid for other miscellaneous repairs and

expenses.   Four defendants testified that they remained at the

church despite repeatedly being asked by the RCAB to "move on,"

and there was no dispute that the defendants remained on the

property after receiving the RCAB's formal notice to vacate.

For reasons discussed infra, the judge properly declined to

consider whether Canon 1214 gave the defendants a right of




     11
       While the defendants purported to challenge the RCAB's
ownership of the church, they did not offer any evidence at
trial that would support an inference that the RCAB does not own
the property.
                                                                    13


entry, and we see no error in his conclusion that the RCAB's

claim was not barred by the doctrine of laches.12

     The judge's factual findings support his legal conclusion

that the defendants are trespassers.     See Restatement (Second)

of Torts § 158 (1965) ("One is subject to liability to another

for trespass . . . if he intentionally [a] enters land in the

possession of the other . . . or [b] remains on the land

. . .").   The judge's ultimate conclusion that the defendants

have remained on RCAB property without justification or excuse

is "based on reasonable inferences from the evidence and [is]

consistent with the findings," and there was no error.      Demoulas

v. Demoulas Super Mkts., Inc., 424 Mass. 501, 510 (1997).

     3.    Remaining claims.   The judge properly denied the

defendants' demands for a jury trial.     The RCAB sought

declaratory and injunctive relief, and it is well settled that

"[t]here is no constitutional right to a jury trial when the

cause of action arises in equity."     Id. at 526.   While the

counterclaim sought a remedy at law in the form of damages, see

Rosati v. Boston Pipe Covering, Inc., 434 Mass. 349, 352 (2001),

and the RCAB's choice to proceed in equity "ought not to deprive


     12
       Although the RCAB agreed to allow the defendants to
remain in the church until their canonical appeals were
exhausted, it is without question that by February 3, 2015, the
defendants knew that they lacked the RCAB's consent to remain on
the property.
                                                                  14


[the defendants] of [their] right of trial by jury," Merchants'

Natl. Bank of Newburyport v. Moulton, 143 Mass. 543, 545 (1887),

the judge aptly noted that the allegations set forth in the

counterclaim failed to state a claim upon which relief can be

granted.   See Mass.R.Civ.P. 12(b)(6), 365 Mass. 754 (1974).

Accordingly, the defendants were not entitled to a jury trial on

the counterclaim.

     Nor did the judge err in denying the defendants' emergency

motion to continue the trial date.   The defendants had ample

opportunity to contact the Attorney General and pursue their

civil claim for equitable ownership of the church between

September, 2008, when our decision in Rogers I issued, and April

3, 2015, when the judge in this case heard argument on the

emergency motion to continue.13   Further discovery was not

required in light of the narrow issue to be decided at trial,

and there was no need to depose Cardinal O'Malley on the issue

of laches because the RCAB acknowledged that the defendants had

been occupying the church without its consent for eleven years

before it took legal action.   Testimony on this point would have

been cumulative and answers to the defendants' proposed


     13
       In Rogers I, 72 Mass. App. Ct. 1117, the panel, citing
G. L. c. 12, § 8, noted that it was the Attorney General, and
not the defendants, who had standing to maintain an action
alleging mismanagement of charitable funds held in trust under
G. L. c. 67, §§ 44-46.
                                                                  15


questions largely irrelevant, so there was no abuse of

discretion.   See Hanover Ins. Co. v. Sutton, 46 Mass. App. Ct.

153, 159 (1999) ("The scheduling of trial and the conduct and

scope of discovery . . . are issues within the sound discretion

of the motion or trial judge").

    The defendants make no argument regarding the portion of

the judgment permanently enjoining them or anyone associated

with them from trespassing at the church, and we see no abuse of

discretion in the judge ordering such relief.   See LightLab

Imaging, Inc. v. Axsun Technologies, Inc., 469 Mass. 181, 194

(2014) ("Trial judges have broad discretion to grant or deny

injunctive relief, . . . and we review a judge's decision for an

abuse of that discretion").   While we acknowledge the

defendants' heartfelt beliefs that they are entitled to remain

on the premises as an exercise of their freedom of religion, the

judge's conclusion that the defendants are trespassers is

supported by the evidence, and "a landowner is entitled to be

protected by injunction against continuing trespasses of a

physical and tangible nature."    Fortier v. H. P. Hood & Sons,

307 Mass. 292, 297 (1940).

                                    Judgment affirmed.
