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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.