Nation Ford Baptist Church

• Court: Court of Appeals of North Carolina
• Decided: October 5, 2021
• Docket: 20-800
• Status: Published

Opinion

IN THE COURT OF APPEALS OF NORTH CAROLINA

2021-NCCOA-528

No. COA20-800

Filed 5 October 2021

Mecklenburg County, No. 19-CvS-18345

NATION FORD BAPTIST CHURCH INCORPORATED d/b/a Nations Ford Community Church, Plaintiff,

v.

PHILLIP RJ DAVIS, Defendant/Third-Party Plaintiff,

JOSEPH DIXON, CHARLES ELLIOT and DOUGLAS WILLIE, Third-Party Defendants.

Appeal by Plaintiff/Third-Party Defendant from order entered 22 July 2020 by

Judge Carla N. Archie in Mecklenburg County Superior Court. Heard in the Court

of Appeals 10 August 2021.

Knox, Brotherton, Knox & Godfrey, by Lisa G. Godfrey, H. Edward Knox, and J. Gray Brotherton, for the Plaintiff- and Third-Party Defendants-Appellants.

Nexsen Pruet, PLLC, by James C. Smith and Nicholas T. Pappayliou, for the Defendant/Third-Party Plaintiff-Appellee.

GRIFFIN, Judge.

¶1 Plaintiff Nation Ford Baptist Church Incorporated (the “Church”) and Third-

Party Defendants Joseph Dixon, Charles Elliot, and Douglas Willie (together, the

“Elders”) appeal the trial court’s order denying their motion to dismiss and granting NATION FORD V. DAVIS

Opinion of the Court

Defendant and Third-Party Plaintiff Phillip R.J. Davis’s (“Davis”) motion to amend

his counterclaim and third-party complaint. The Church and the Elders argue the

trial court erred in denying their motion, granting Davis’s motion, and concluding

Davis had standing to bring the claims asserted in his counterclaim and third-party

complaint.

¶2 The primary issue presented in this appeal is whether the resolution of Davis’s

claims would require our Courts to interpret religious matters in violation of the

ecclesiastical abstention doctrine which stems from the First Amendment to the

United States Constitution. We hold that there is no guarantee that our Courts will

be forced to weigh ecclesiastical matters at this stage of the proceedings. We affirm

the decision of the trial court.

I. Factual and Procedural History

¶3 The Church was incorporated as a North Carolina nonprofit corporation in

1988. At the Church’s time of incorporation, the Elders acted as the Board of

Directors for the Church. On 31 March 2016, the Elders hired Davis to serve as

Senior Pastor for the Church. Davis was employed on an “‘at-will’ basis.” The

employment agreement letter signed by Davis on 31 March 2016 set out his terms of

employment, in pertinent part, as follows:

An “at-will” employment relationship has no specific duration. This means that an employee can resign their employment at any time, with or without reason or NATION FORD V. DAVIS

advance notice. The [C]hurch has the right to terminate employment at any time, with or without reason or advance notice as long as there is no violation of applicable state or federal law.

(Emphasis added).

¶4 The Record in this case contains two different sets of bylaws, and the parties

disagree which bylaws governed the Church’s operations during the time relevant to

this case. The Church adopted a set of bylaws (“the First Bylaws”) on 8 January 1997.

On or about April 2008, the Church applied for a bank loan, and incorporated another

set of bylaws (“the Second Bylaws”) as part of its loan application.

¶5 Effective 17 June 2019, the Elders unanimously decided to terminate Davis’s

employment at the Church. Despite his termination, Davis ignored the instructions

of the Church and continued to conduct religious activities at the Church.

¶6 The Church initiated this action on 17 September 2019 seeking, inter alia, a

preliminary injunction to prohibit Davis from accessing the Church. In response,

Davis filed an answer, counterclaim, third-party complaint, and motion for injunctive

relief on 24 October 2019. Davis’s claims are centered around an employment dispute

for which the remedy is dependent upon determining which bylaws governed the

Church’s actions. An order granting the Church’s motion for a preliminary injunction

was entered on 30 October 2019.

¶7 On 22 April 2020, the Church and the Elders filed a motion to dismiss Davis’s NATION FORD V. DAVIS

counterclaim and third-party complaint. Davis moved to amend his answer,

counterclaim, and third-party complaint on 6 May 2020. The court entered an order

(“the Order”) granting Davis’s motion to amend and denying the Church and the

Elders’ motion to dismiss on 22 July 2020. According to the Order,

The [c]ourt finds and concludes that (i) this [c]ourt has subject matter jurisdiction over the matters and claims asserted in [Davis]’s Counterclaim and Third-Party Complaint, (ii) [Davis] has standing to bring the claims asserted in his Counterclaim and Third-Party Complaint, and (ii) [Davis]’s Motion to Amend should be granted.

The Church and the Elders timely appeal.

II. Analysis

¶8 The Church and the Elders raise three issues on appeal. First, they contend

the trial court erred in concluding that it has subject matter jurisdiction over the

matters asserted in Davis’s amended counterclaim and third-party complaint.

Second, they argue the trial court erred in concluding that Davis has standing to

bring the claims asserted in his amended counterclaim and third-party complaint.

Third, they assert the trial court erred in granting Davis’s motion to amend the

counterclaim and third-party complaint. We address each issue in turn.

A. Interlocutory Jurisdiction

¶9 We acknowledge that this appeal is interlocutory. An interlocutory order is

“made during the pendency of an action and does not dispose of the case but requires NATION FORD V. DAVIS

further action by the trial court in order to finally determine the rights of all the

parties involved in the controversy.” Flitt v. Flitt, 149 N.C. App. 475, 477, 561 S.E.2d

511, 513 (2002) (citation omitted). There is generally no right to immediately appeal

from an interlocutory order. Id. Immediate appeal of an interlocutory order is,

however, appropriate when “the challenged order affects a substantial right that may

be lost without immediate review.” McConnell v. McConnell, 151 N.C. App. 622, 624,

566 S.E.2d 801, 803 (2002) (citation omitted).

¶ 10 A “substantial right” is “a right materially affecting those interests which a

man is entitled to have preserved and protected by law: a material right.” Oestreicher

v. Stores, 290 N.C. 118, 130, 225 S.E.2d 797, 805 (1976) (citation and quotation marks

omitted). The appellant has the burden of establishing that a substantial right will

be affected unless they are allowed to immediately appeal from an interlocutory

order. Jeffreys v. Raleigh Oaks Joint Venture, 115 N.C. App. 377, 379, 444 S.E.2d

252, 253 (1994).

¶ 11 The trial court’s Order denying the Church and Elders’ motion to dismiss and

granting Davis’s motion to amend is an interlocutory order. It was made during the

pendency of the action and it does not dispose of the case. However, the Church and

the Elders argue that their motion to dismiss should have been granted because

resolution of Davis’s claims would require the trial court to impermissibly entangle

itself in ecclesiastical matters in violation of the First Amendment of the United NATION FORD V. DAVIS

States Constitution. “First Amendment rights are substantial and . . . are implicated

when a party asserts that a civil court action cannot proceed without impermissibly

entangling the court in ecclesiastical matters.” Harris v. Matthews, 361 N.C. 265,

270, 643 S.E.2d 566, 569 (2007). “When First Amendment rights are asserted, this

Court has allowed appeals from interlocutory orders.” Id. (citation omitted).

¶ 12 The Church and the Elders have asserted a violation of First Amendment

rights. Their appeal is properly before this Court.

B. Motion to Dismiss for Ecclesiastical Abstention

¶ 13 The Church and the Elders contend the trial court erred in concluding that it

had subject matter jurisdiction over the claims asserted in Davis’s amended

counterclaim and third-party complaint because the court would be forced to

interpret and resolve ecclesiastical questions to resolve the claims.

¶ 14 The standard of review for a trial court’s decision to deny a motion to dismiss

for lack of subject matter jurisdiction under Rule 12(b)(1) is de novo. Tubiolo v.

Abundant Life Church, Inc., 167 N.C. App. 324, 327, 605 S.E.2d 161, 163 (2004)

(citation omitted). When ruling on or reviewing a Rule 12(b)(1) motion to dismiss,

our courts may “consider and weigh matters outside of the pleadings.” Id. (citation

omitted). Upon review of a motion to dismiss for lack of subject matter jurisdiction,

the trial court must accept the allegations in the complaint as true and construe them

in the light most favorable to the non-moving party. Johnson v. Antioch United Holy NATION FORD V. DAVIS

Church, Inc., 214 N.C. App. 507, 510, 714 S.E.2d 806, 809 (2011) (citations omitted).

¶ 15 The trial court properly determined it had subject matter jurisdiction over

Davis’s claims. “The First Amendment of the United States Constitution prohibits a

civil court from becoming entangled in ecclesiastical matters.” Id. at 510, 714 S.E.2d

at 810 (citing Presbyterian Church in U.S. v. Mary Elizabeth Blue Hull Mem’l

Presbyterian Church, 393 U.S. 440, 449 (1969)). “An ecclesiastical matter is one

which concerns doctrine, creed, or form of worship of the church, or the adoption and

enforcement within a religious association of needful laws and regulations for the

government of membership.” W. Conf. of Original Free Will Baptists of N.C. v. Miles,

259 N.C. 1, 10–11, 129 S.E.2d 600, 606 (1963) (citations omitted).

¶ 16 However, civil courts do not violate the First Amendment “merely by opening

their doors to disputes involving church property.” Presbyterian Church, 393 U.S. at

449. “And there are neutral principles of law, developed for use in all property

disputes, which can be applied without ‘establishing’ churches to which property is

awarded.” Id. “The First Amendment therefore commands civil courts to decide

church property disputes without resolving underlying controversies over religious

doctrine.” Serbian E. Orthodox Diocese for U.S. of A. and Canada v. Milivojevich, 426

U.S. 696, 710 (1976) (citation omitted). “This principle applies with equal force to

church disputes over church polity and church administration.” Id. “The dispositive

question is whether resolution of the legal claim requires the court to interpret or NATION FORD V. DAVIS

weigh church doctrine.” Smith v. Privette, 128 N.C. App. 490, 494, 495 SE.2d 396,

398 (1998). “If not, the First Amendment is not implicated and neutral principles of

law are properly applied to adjudicate the claim.” Id (citation omitted). “When a

party brings a proper complaint, ‘[w]here civil, contract[][,] or property rights are

involved, the courts will inquire as to whether the church tribunal acted within the

scope of its authority and observed its own organic forms and rules.’” Harris v.

Matthews, 361 N.C. 265, 274–75, 643 S.E.2d 566, 572 (2007) (quoting Atkins v.

Walker, 284 N.C. 306, 320, 200 S.E.2d 641, 650 (1973)).

¶ 17 Davis’s claims request the following:

(I) Declaratory judgment against the Church and the Elders, declaring that: (i) Davis is the “Bishop” and “Senior Pastor” of the Church; (ii) Davis was not an “at-will” employee of the Church; (iii) the Elders’ attempt to terminate Davis’s employment with the Church was unauthorized by the then-controlling Second Bylaws; and (iv) Davis is entitled to recover back-pay and benefits earned since his purported termination;

(II) Preliminary and permanent injunction allowing Davis to resume employment with the Church, earning full compensation and benefits;

(III) Money damages from the Elders for breach of fiduciary obligations owed to Davis and to the Church;

(IV) Money damages from the Elders for wrongful interference with Davis’s employment relationship with the Church;

(V) Rights (i) to inspect the Church’s financial records, (ii) NATION FORD V. DAVIS

to receive an accounting from the Elders and the Church of Church funds or assets the Elders misappropriated, and (iii) to impose a constructive trust upon the Elders’ assets in an amount equal to any Church funds or assets found to have been misappropriated; and

(VI) Money damages from the Elders for civil conspiracy to remove Davis from employment with the Church and to seize complete control of the Church’s operations.

¶ 18 As Davis asserts, “[t]his is an employment dispute.” The core tenet upon which

all of Davis’s claims depend is the determination of which bylaws governed the

Church at the relevant time. Davis was an employee of the Church and now raises

disputes regarding the Church’s bylaws. His claims do not fall under the protections

of ecclesiastical matters within the First Amendment.

¶ 19 Resolving Davis’s claims requires a two-part determination: First, which

bylaws were the governing authority at the relevant time, and whether Davis’s

termination was in accordance with the proper bylaws? Second, whether the Elders

properly determined that Davis was unfit to serve as Senior Pastor of the Church?

¶ 20 The first determination may be made by applying neutral principles of law

without engaging in ecclesiastical matters. Smith, 128 N.C. App. at 494, 495 SE.2d

at 398. The trial court must first determine which set of bylaws controlled at the

relevant time, based solely on contract and business law. The court will then be able

to assess whether the Church’s procedure for firing Davis complied with the

requirements of the controlling bylaws. The court may determine that the Church’s NATION FORD V. DAVIS

method of terminating Davis did not comply with the requirements of the controlling

bylaws, making Davis’s termination void. In this instance, this dispute would be

resolved without the necessity of answering the second question—whether Davis was

unfit to serve—and engaging with ecclesiastical matters.

¶ 21 If the court determines that the Church’s method of terminating Davis did

comply with the requirements of the controlling bylaws, then our Courts would be

required to assess whether the Church, through its Elders, properly determined that

Davis was unfit to serve as Senior Pastor. That determination cannot be made

applying only neutral principles of law. Answering this second question may require

an impermissible engagement with ecclesiastical matters, but there is no guarantee

at this stage of the proceedings that our courts will be forced to answer this second

question.

¶ 22 The first determination required in the present case is analogous to Tubiolo v.

Abundant Life Church, Inc. The plaintiffs in Tubiolo brought claims against the

defendant church for wrongful termination, arguing that the persons who sought

termination of the plaintiffs lacked the requisite authority to do so. Tubiolo, 167 N.C.

App. at 326, 605 S.E.2d at 163. The Court in Tubiolo was tasked with determining

what bylaws governed the actions of the defendant church, and whether the actions

taken by the defendant church were in accordance with the appropriate bylaws. Id.

at 329, 605 S.E.2d at 164. The Tubiolo Court noted “the courts do have jurisdiction NATION FORD V. DAVIS

over the very narrow issue of whether the bylaws were properly adopted by the

defendant [church].” Id. The Tubiolo Court then held, as this Court has previously

acknowledged, that it is

proper for a court to address the “very narrow issue” of whether the plaintiffs’ membership was terminated in accordance with the church’s bylaws—whether bylaws had been adopted by the church, and whether those individuals who signed a letter revoking the plaintiffs’ membership had the authority to do so.

Johnson, 214 N.C. App. at 512, 714 S.E.2d at 811 (discussing the holding of Tubiolo,

167 N.C. App. at 329, 605 S.E.2d at 164–65). The present case requires determining

which bylaws were in effect, whether new bylaws had been adopted by the Church,

whether the Elders had the authority to terminate Davis, and whether the

termination was done in accordance with the proper bylaws. “This inquiry can be

made without resolving any ecclesiastical or doctrinal matters.” Tubiolo, 167 N.C.

App. at 329, 605 S.E.2d at 164–65. Our courts have jurisdiction over each of these

determinations.

C. Standing

¶ 23 The Church and the Elders argue that Davis does not have standing to bring

his claims because they are derivative and brought on behalf of the Church. We

disagree.

¶ 24 The Church and the Elders specifically argue that Davis does not have NATION FORD V. DAVIS

standing to bring a derivative suit on behalf of the Church for his first, second, third,

and fifth claims. N.C. Gen. Stat. § 55A-7-40(a) outlines derivative actions, providing:

An action may be brought in a superior court of this State, which shall have exclusive original jurisdiction over actions brought hereunder, in the right of any domestic or foreign corporation by any member or director, provided that, in the case of an action by a member, the plaintiff or plaintiffs shall allege, and it shall appear, that each plaintiff-member was a member at the time of the transaction of which he complains.

N.C. Gen. Stat. § 55A-7-40(a) (2019).

¶ 25 A majority of Davis’s first, second, third, and fifth claims allege injuries

incurred in his individual capacity, and not on behalf of the Church. However, a

portion of Davis’s third claim appears to request money damages from the Elders for

breach of their fiduciary obligations owed to the Church itself. Seeking remedy on

behalf of the Church for harm done to the Church would be a derivative action. The

Church and the Elders argue that Davis lacks standing to bring a derivative action

as a member of the Church because the First Bylaws explicitly state that the Church

has no members. A determination of which bylaws were the proper governing

authority of the Church at the relevant time is necessary to the determination of

whether Davis has standing to bring the derivative action in his third claim. NATION FORD V. DAVIS

¶ 26 The remainder of Davis’s claims are brought in an individual capacity and are

not derivative on behalf of the Church. A plaintiff must show the following three

elements in order to establish individual standing:

(1) ‘injury in fact’—an invasion of a legally protected interest that is (a) concrete and particularized and (b) actual or imminent, not conjectural or hypothetical; (2) the injury is fairly traceable to the challenged action of the defendant; and (3) it is likely, as opposed to merely speculative, that the injury will be redressed by a favorable decision.

McDaniel v. Saintsing, 260 N.C. App. 229, 232–33, 817 S.E.2d 912, 914–15 (2018)

(citation omitted). The alleged wrongful termination of Davis is an “injury in fact”

that satisfies the first element. Davis was terminated by the actions of the Church

and the Elders. If the court finds in favor of Davis, the injury will be sufficiently

redressed.

¶ 27 The trial court did not err in determining that Davis had standing to bring the

claims asserted in his amended counterclaim and third-party complaint at this stage

of the proceedings.

D. Motion to Amend

¶ 28 The Church and the Elders assert the trial court erred in granting Davis’s

motion to amend the counterclaim and third-party complaint under Rule 15 of the

North Carolina Rules of Civil Procedure. We review a trial court’s decision to grant

a motion to amend the pleadings for an abuse of discretion. Carter v. Rockingham NATION FORD V. DAVIS

Cnty. Bd. Of Educ., 158 N.C. App. 687, 690, 582 S.E.2d 69, 72 (2003); Mabrey v.

Smith, 144 N.C. App. 119, 121, 548 S.E.2d 183, 185–86 (2001) (“A motion to amend

the pleadings is addressed to the sound discretion of the trial court.”). “[A] trial judge

abuses his discretion when he refuses to allow an amendment unless justifying

reasoning is shown.” Taylor v. Triangle Porsche–Audi, Inc., 27 N.C. App. 711, 714,

220 S.E.2d 806, 809 (1975) (citing Foman v. Davis, 371 U.S. 178, 182 (1962)).

“Generally, Rule 15 is construed liberally to allow amendments where the opposing

party will not be materially prejudiced.” Delta Envtl. Consultants of N.C., Inc. v.

Wysong & Miles Co., 132 N.C. App. 160, 165, 510 S.E.2d 690, 694 (1999) (citation

omitted).

¶ 29 The Church has not shown reason justifying a denial of Davis’s motion to

amend or any materially unfair prejudice as a result of the trial court’s decision to

grant Davis’s motion to amend. The trial court did not abuse its discretion by

granting Davis’s motion to amend the counterclaim and third-party complaint.

III. Conclusion

¶ 30 We hold the trial court did not err in determining it had subject matter

jurisdiction over Davis’s counterclaims and third-party complaint at this stage of the

proceedings. The Church’s motion to dismiss for lack of subject matter jurisdiction

was properly denied. The trial court did not err in determining Davis had standing

to bring the counterclaims and third-party complaint. We hold there was no abuse of NATION FORD V. DAVIS

discretion in the trial court’s decision to grant Davis’s motion to amend the

counterclaim and third-party complaint. The Order of the trial court is affirmed.

AFFIRMED.

Judge ARROWOOD concurs.

Judge MURPHY concurs in part and dissents in part by separate opinion. No. COA20-800 – Nation Ford v. Davis

MURPHY, Judge, concurring in part and dissenting in part.

¶ 31 While I concur with the Majority’s analysis regarding our jurisdiction over this

interlocutory appeal, supra at ¶¶ 9-12, I respectfully dissent from its conclusion that

we have subject matter jurisdiction over this appeal. Supra at ¶¶ 15, 18. I would

reverse the trial court’s order denying the motion to dismiss for lack of subject matter

jurisdiction, which would render the issue regarding Davis’s standing moot. I would

also hold the trial court lacked subject matter jurisdiction over the complaint,

counterclaim, and amended counterclaim and remand for the trial court to dismiss

the action with prejudice.1

ANALYSIS

A. Complete Entanglement of the Original Counterclaim

¶ 32 “Civil court intervention into church property disputes is proper only when

‘relationships involving church property [have been structured] so as not to require

the civil courts to resolve ecclesiastical questions.’” Harris v. Matthews, 361 N.C. 265,

271, 643 S.E.2d 566, 570 (2007) (emphases added) (marks in original) (quoting

Presbyterian Church in the U.S. v. Mary Elizabeth Blue Hull Mem’l Presbyterian

Church, 393 U.S. 440, 449, 21 L. Ed. 2d 658, 665 (1969)); Western Conference of

Original Free Will Baptists of N.C. v. Creech, 256 N.C. 128, 140, 123 S.E.2d 619, 627

1 For ease of reading, “counterclaim” and “original counterclaim” refer to both the

counterclaim and third-party complaint filed 24 October 2019. “Amended counterclaim” refers to the amended counterclaim and third-party complaint filed 30 July 2020. NATION FORD V. DAVIS

MURPHY, J., concurring in part and dissenting in part.

(1962) (marks omitted) (“The legal or temporal tribunals of the State have no

jurisdiction over, and no concern with, purely ecclesiastical questions and

controversies but the courts do have jurisdiction, as to civil, contract and property

rights which are involved in, or arise from, a church controversy.”). Our Supreme

Court has defined an ecclesiastical matter as

one which concerns doctrine, creed, or form of worship of the church, or the adoption and enforcement within a religious association of needful laws and regulations for the government of membership, and the power of excluding from such associations those deemed unworthy of membership by the legally constituted authorities of the church; and all such matters are within the province of church courts and their decisions will be respected by civil tribunals.

Eastern Conference of Original Free Will Baptists of N.C. v. Piner, 267 N.C. 74, 77,

147 S.E.2d 581, 583 (1966) (quoting Western Conference of Original Free Will Baptists

of N.C. v. Miles, 259 N.C. 1, 10-11, 129 S.E.2d 600, 606 (1963)), overruled in part by

Atkins v. Walker, 284 N.C. 306, 200 S.E.2d 641 (1973). “When a congregational

church’s internal property dispute cannot be resolved using neutral principles of law,

the courts must intrude no further[.]” Harris, 361 N.C. at 271-72, 643 S.E.2d at 570.

Such judicial intrusion would constitute “impermissibl[e] entangle[ment] in the

dispute.” Id. at 273, 643 S.E.2d at 571.

1. “Spiritual Leader”

¶ 33 Davis’s original counterclaim repeatedly requested judicial recognition that he NATION FORD V. DAVIS

is “the Bishop, Senior Pastor and spiritual leader of the Church.” (Emphasis added).

Davis specifically claimed he “is entitled to judgment declaring that [he] is the Bishop,

Senior Pastor and spiritual leader of the Church[.]” (Emphasis added). The trial

court stated it had subject matter jurisdiction over the original counterclaim and

allowed Davis’s motion to amend. Despite stating in his motion to amend that the

purpose was “to amend the factual allegations of the [original counterclaim][,] . . . add

a claim for back pay and benefits[,] . . . and . . . add a claim for civil conspiracy[,]”

Davis’s amended counterclaim also removed the “spiritual leader” language

throughout. The amended counterclaim included a request for a “judgment declaring

that [Davis] is the Bishop and Senior Pastor of the Church.” Davis’s requests for

recognition as the “Bishop” and “Senior Pastor” throughout the amended

counterclaim included that language, sans the additional term “spiritual leader.” The

removal of the “spiritual leader” language did not fit the stated purpose for amending

the counterclaim and suggests an attempt to avoid the prohibition against reviewing

purely ecclesiastical issues. Further, the removal of “spiritual leader” underscores

the religious nature of the “Bishop” and “Senior Pastor” terms, as well as the

similarity and connectedness of all three terms. The original counterclaim required

impermissible entanglement in ecclesiastical matters and should have been

dismissed for lack of subject matter jurisdiction.

¶ 34 Davis’s request for recognition as the “spiritual leader” of the Church was an NATION FORD V. DAVIS

explicit request for judicial review of his role within the Church. Davis’s request

would require

an examination of the church’s view of the role of the pastor, staff, and church leaders[.] . . . Because a church’s religious doctrine and practice affect its understanding of each of these concepts, seeking a court’s review . . . is no different than asking a court to determine whether a particular church’s grounds for membership are spiritually or doctrinally correct[.] . . . None of these issues can be addressed using neutral principles of law.”

Id. at 273, 643 S.E.2d at 571.

2. Bylaws–“Special Meeting” and “Congregation”

¶ 35 Even assuming, arguendo, that a later set of bylaws controls the purported

termination of his role as Bishop, Pastor, and spiritual leader of the Church, as Davis

claimed, such bylaws would require a special meeting with a specific percentage of

congregants to vote for his termination. According to both his original counterclaim

and amended counterclaim, “the New Bylaws expressly provide[] that the Bishop of

the Church can be dismissed only by a 75% vote of the congregation attending a

Special General Meeting called for that purpose. No Special General Meeting of the

congregation was convened[.]” What constitutes such a special meeting to dismiss

Davis from that role, as well as the definition of congregants or members of the

Church, are ecclesiastical matters, which courts may not analyze and where we may

not exercise the authority of the State. See Azige v. Holy Trinity Ethiopian Orthodox NATION FORD V. DAVIS

Tewahdo Church, 249 N.C. App. 236, 241, 790 S.E.2d 570, 574 (2016) (“Membership

in a church is a core ecclesiastical matter. The power to control church membership

is ultimately the power to control the church. It is an area where the courts of this

State should not become involved. This stricture applies regardless of whether the

church is a congregational church, incorporated or unincorporated, or an hierarchical

church.”), disc. rev. denied, 369 N.C. 532, 797 S.E.2d 290 (2017); Emory v. Jackson

Chapel First Missionary Baptist Church, 165 N.C. App. 489, 493, 598 S.E.2d 667, 671

(2004) (“As the trial court would be required to delve into ‘ecclesiastical matters’

regarding how the church interprets [bylaw requirements such as] types of meetings,

the trial court [lacked] subject matter jurisdiction.”).

We are prohibited from becoming entangled in ecclesiastical matters and have no jurisdiction over disputes which require an examination of religious doctrine and practice in order to resolve the matters at issue. . . . Only when an issue to be determined in connection with a party’s claim is a purely secular one, then neutral principles of law govern the inquiry and subject matter jurisdiction exists in the trial court over the claim. . . . Therefore, because a church’s religious doctrine and practice affect its understanding of each of the concepts at issue, [the trial court’s involvement] is like asking a court to determine whether a particular church’s grounds for membership are spiritually or doctrinally correct or whether a church’s charitable pursuits accord with the congregation’s beliefs, which are barred.

Lippard v. Holleman, 271 N.C. App. 401, 408, 410-11, 844 S.E.2d 591, 598-99, 600

(citations and marks omitted), disc. rev. denied, appeal dismissed, 375 N.C. 492, 847 NATION FORD V. DAVIS

S.E.2d 882 (2020), cert. denied, 594 U.S. __, 2021 WL 2637859 (2021).

¶ 36 The entirety of the original counterclaim should have been dismissed for lack

of subject matter jurisdiction, as it required the trial court to delve into ecclesiastical

matters. On appeal, judicial analysis of Davis’s original counterclaim requires

impermissible entanglement in this dispute, as no neutral principles of law can be

applied to determine whether Davis is the spiritual leader of the Church, whether a

special meeting was held to dismiss him from that role, and who constituted a

congregant or member of the Church. The Majority’s approach jeopardizes the

Church’s “First Amendment values,” as this “church property litigation . . . turn[s]

on the resolution by civil courts of controversies over religious doctrine and practice.”

Harris, 361 N.C. at 271, 643 S.E.2d at 570 (quoting Presbyterian, 393 U.S. at 449, 21

L. Ed. 2d at 665). I would hold the trial court lacked subject matter jurisdiction over

Davis’s original counterclaim; we should reverse the order for lack of subject matter

jurisdiction and remand to the trial court to dismiss the action with prejudice,

rendering the issue regarding Davis’s standing moot. See id. at 275, 643 S.E.2d at

572.

B. The Amended Counterclaim

¶ 37 As previously noted, the original counterclaim should have been dismissed as

requiring impermissible judicial entanglement in ecclesiastical matters due to

Davis’s request for judicial recognition as the spiritual leader of the Church, as well NATION FORD V. DAVIS

as the requirements under the later set of bylaws. However, even if the original

counterclaim was overlooked and the amended counterclaim was the sole focus of our

analysis, the amended counterclaim still requires impermissible judicial

entanglement in ecclesiastical matters. The following portions of the amended

counterclaim, which mirror similar requests and references in the original

counterclaim, are ecclesiastical matters requiring impermissible judicial

entanglement:

35. [Davis] is entitled to judgment declaring that:

(a) [he] is the Bishop and Senior Pastor of the Church;

...

(d) [and that his] appearances on Church property to conduct church services, minister to the congregation, and otherwise perform his duties as Bishop and Senior Pastor of the Church were and are lawful[.]

....

38. . . . [T]he Third-Party Defendants, purporting to act on behalf of and in the name of the Church, have unlawfully interfered and will continue to interfere with [Davis’s] employment relationship with the Church and with his performance of duties as the Bishop and Senior Pastor of the Church, unless restrained by this Court.

39. [Davis] is entitled to a preliminary and permanent injunction enjoining, restraining and directing plaintiff and the Third-Party Defendants, as follows:

(a) to allow [Davis] to resume his role and duties as the Bishop and Senior Pastor of the Church, with full NATION FORD V. DAVIS

compensation and benefits, until such time as the Church’s congregation may vote to remove [him] in accordance with the requirements of the New Bylaws of the Church;

(b) to refrain from excluding [Davis] from the Church premises and/or any other Church properties; and

(c) to refrain from taking any action to interfere with, subvert or disrupt [Davis] in the performance of his duties as the Bishop and Senior Pastor of the Church.

41. A fiduciary relationship of trust and confidence existed between [Davis], as the Bishop and Senior Pastor of the Church, and the Third-Party Defendants as Elders of the Church.

42. A fiduciary relationship of trust and confidence also existed between the Third-Party Defendants as Elders and the Plaintiff Church they were supposed to serve.

43. Due to the fiduciary relationship that existed between them, the Third-Party Defendants were required in equity and in good conscience to act honestly, in good faith and in the best interests of the Church and [Davis] as the Bishop and Senior Pastor of the Church.

44. . . . [T]he Third-Party Defendants[] have breached their fiduciary duties owed to [Davis] and the Church, in that the Third-Party Defendants have arrogated to themselves the sole management and control of the Church and have prevented [Davis] from exercising his rightful role as the Bishop and Senior Pastor of the Church, all in violation of the requirements of the New Bylaws of the Church.

45. As a direct and proximate result of the Third-Party Defendants’ breaches of their fiduciary duties[,] . . . [Davis] has been damaged . . . . NATION FORD V. DAVIS

49. The Third-Party Defendants intentionally induced the Plaintiff church to breach the employment relationship that existed between the Church and [Davis], and in so doing the Third-Party Defendants acted with malice and without justification.

52. . . . [T]he Third-Party Defendants have utilized Church assets to fund this litigation against [Davis].

53. Additionally, the Church maintained a “Key Man” insurance policy issued by New York Life Insurance company on the life of [Davis’s] father [who was] his predecessor as the Bishop and Senior Pastor of the Church, in a benefit amount believed to be several million dollars. Upon information and belief, after [Davis’s] father died in August of 2015, a majority of the benefit amount of that policy was paid to the Church.

54. Because the Third-Party Defendants arrogated to themselves all control and management of the Church’s business affairs and activities, to the exclusion of [Davis] notwithstanding his status and role as the Bishop and Senior Pastor of the Church, [Davis] has been unable to determine how those insurance proceeds have been utilized by the Third-Party Defendants and whether those proceeds have been properly devoted to the Church’s benefit.

55. [Davis], as the Bishop and Senior Pastor of the Church, is entitled to inspect the books and records of the Church, in order to determine how Church assets and funds have been utilized and whether any such assets or funds have been misused or misappropriated by the Third-Party Defendants.

56. [Davis] is entitled to a complete accounting from the Church and the Third-Party Defendants for any and all NATION FORD V. DAVIS

items of Church property and money diverted, misappropriated, received, used or expended by the Third- Party Defendants, or any of them.

57. [Davis] is further entitled to have a constructive trust imposed upon the assets of the Third-Party Defendants, for the benefit of the Church, in an amount equal to any Church money or property found by this Court to have been wrongfully misappropriated or taken by the Third-Party Defendants, or any of them.

59. The Third-Party Defendants . . . formed an agreement among themselves to do unlawful acts or to do lawful acts in an unlawful way, resulting in injury to the Third-Party Plaintiff, [Davis].

60. After [Davis] discovered the existence of the New Bylaws in November of 2017 and demanded the resignations of the Third-Party Defendants as Elders of the Church, the Third-Party Defendants conspired among themselves to oust [him] and his family members from the Church and thereby arrogate to themselves full control of the Church’s operations and activities.

61. Pursuant to their conspiracy, as described above, the Third-Party Defendants committed, or caused to be committed, the following overt acts:

(b) In January of 2018, the Third-Party Defendants submitted to [Davis] a purported “evaluation” of his performance. No such “performance evaluation” had ever been previously done on the Bishop and Senior Pastor of the Church, and the Third-Party defendants had no authority under the New Bylaws to conduct such an “evaluation.” NATION FORD V. DAVIS

(c) Throughout 2018 and the first half of 2019, the Third- Party Defendants refused to meet with [Davis] and instead actively worked to undermine [his] leadership role as the Bishop and Senior Pastor of the Church.

WHEREFORE, . . . Davis prays the Court for relief as follows:

3. That the [trial] [c]ourt issue an Order requiring the Church and the Third-Party Defendants to appear and show cause why [his] Motion for Preliminary Injunction should not be granted;

4. That, following a hearing on [Davis’s] Motion for Preliminary Injunction, the [trial] [c]ourt issue an Order of Preliminary Injunction directing, enjoining and restraining the Church, the Third-Party Defendants, and all other persons or entities acting at their instruction or in concert with any of them, as follows:

(a) to allow [Davis] to resume his role and duties as the Bishop and Senior Pastor of the Church, with full compensation and benefits, to include back pay from June 2019, pending further Order of the [trial] [c]ourt or until such time as the Church’s congregation may vote to remove [Davis] in accordance with the requirements of the New Bylaws of the Church;

(b) to refrain from excluding [Davis] from the Church premises and/or any other Church properties; and

(c) to refrain from taking any action to interfere with, disrupt or subvert [Davis] in the performance of his duties as the Bishop and Senior Pastor of the Church.

5. That, following a trial on the merits, the [trial] [c]ourt NATION FORD V. DAVIS

enter judgment in favor of [Davis] and against the Church and the Third-Party Defendants on [Davis’s] Counterclaim and Third-Party Complaint as follows:

(a) Declaring that [Davis] is the Bishop and Senior Pastor of the Church; that [Davis’s] employment relationship with the Church is not an “at-will” employment but instead is an employment relationship governed by the New Bylaws of the Church; that the purported “termination” of [Davis’s] employment with the Church, undertaken by the Third- Party Defendants acting on behalf of and in the name of the Church, was contrary to the New Bylaws and therefore unlawful; that [Davis’s] appearances on Church property to conduct church services, minister to the congregation, and otherwise perform his duties as Bishop and Senior Pastor of the Church were and are lawful; and that [Davis] is entitled to receive back pay and benefits from the Church from the date of the purported termination of his employment with the Church.

(b) Entering an Order of Permanent Injunction, directing, enjoining and restraining the Church, the Third-Party Defendants, and all other persons or entities acting at their instruction or in concert with them, to allow [Davis] to perform his role and duties as the Bishop and Senior Pastor of the Church, with full compensation and benefits, until such time as the Church’s congregation may vote to remove [Davis] in accordance with the requirements of the New Bylaws of the Church; to refrain from excluding [Davis] from the Church premises and/or any other Church properties; and to refrain from taking any action to interfere with, disrupt or subvert [Davis] in the performance of his duties as the Bishop and Senior Pastor of the Church.

(d) Ordering the Church and the Third-Party Defendants to [p]ermit [Davis] to inspect the books and records of the Church; ordering the Third-Party Defendants to provide a NATION FORD V. DAVIS

complete accounting for all items of church money or property misappropriated, diverted, received, used or expended by the Third-Party Defendants, or any of them; and imposing a constructive trust upon the assets of the Third-Party Defendants, for the benefit of the Church, in an amount equal to any Church money or property found to have been wrongfully misappropriated or taken by the Third-Party Defendants, or any of them.

1. “Bishop” and “Senior Pastor”

¶ 38 As identified above, Davis still requests a “judgment declaring that [he] is the

Bishop and Senior Pastor of the Church” in Paragraph 35(a) of his amended

counterclaim, and includes repeated statements that he is “the duly installed Bishop

and Senior Pastor of the Church.” These requests and references require a court to

determine what constitutes a “bishop” and a “senior pastor,” and how such a leader

can be “duly installed.” Such a determination would run afoul of our caselaw

prohibition against judicial “examination of the church’s view of the role of the pastor,

staff, and church leaders[.]” Harris, 361 N.C. at 273, 643 S.E.2d at 571. The

ecclesiastical nature of Davis’s requests and references is evidenced by his repeated

pairing of the positions of “Bishop and Senior Pastor” with “conduct[ing],”

“resum[ing],” and “perform[ing] his duties,” as well as “exercising his rightful role” in

the Church. For example, Davis asks for a judicial intervention into the purported

unlawful interference with his “employment relationship with the Church and with

his performance of duties as the Bishop and Senior Pastor of the Church[.]” Courts NATION FORD V. DAVIS

may not define the role, duties, and services of a church’s leader; but, by affirming its

denial of the motion to dismiss, that is exactly what the Majority has allowed the trial

court to do. See id.; supra at ¶¶ 14-15.

2. Fiduciary Relationship

¶ 39 Further, Davis claims that “[a] fiduciary relationship of trust and confidence

existed between [him], as the Bishop and Senior Pastor of the Church, and the Third-

Party Defendants as the Elders of the Church[,]” and that “the Third-Party

Defendants[] . . . breached their fiduciary duties owed to [Davis] and the Church” by

“arrogat[ing] to themselves the sole management and control of the Church[.]”

Davis’s breach of fiduciary duty claim is similar to the plaintiffs’ allegations in Harris.

Our Supreme Court has already determined that the ecclesiastical entanglement

doctrine prohibits judicial review of whether a church’s internal governing body

“breached [its] fiduciary duties by improperly using church funds.” Harris, 361 N.C.

at 273, 643 S.E.2d at 571. Such a review required an improper “examination of the

church’s view of the role of the pastor, staff, and church leaders, their authority and

compensation, and church management.” Id. We similarly cannot examine the role

and relationship between the elders and a pastor, as it involves an improper review

of not only roles, duties, and authority, but also church management.

3. Employment Relationship

¶ 40 Davis also claims “[a] valid employment relationship existed between [him NATION FORD V. DAVIS

and] the Church[,] . . . [and] [t]he Third-Party Defendants intentionally induced the

Plaintiff Church to breach the employment relationship that existed between the

Church and [Davis], and in so doing the Third-Party Defendants acted with malice

and without justification.” “[T]he application of a secular standard to secular conduct

that is tortious is not prohibited by the Constitution,” and tortious conduct could be

analyzed if neutral laws could be applied. Smith v. Privette, 128 N.C. App. 490, 494,

495 S.E.2d 395, 397 (marks omitted), appeal dismissed, 348 N.C. 284, 501 S.E.2d 913

(1998). However, “the decision to hire or discharge a minister is inextricable from

religious doctrine and protected by the First Amendment from judicial inquiry.” Id.

at 495, 495 S.E.2d at 398. Whether the decision to fire Davis was due to failure to

perform a religious role or was nefarious would require the examination of religious

doctrine, and we cannot allow such an examination.

4. “Church’s Benefit”

¶ 41 In his fifth claim for relief in the amended counterclaim, Davis argues “the

Third-Party Defendants have utilized Church assets to fund this litigation against

[Davis,]” which entitles Davis “to have a constructive trust imposed upon the assets

of the Third-Party Defendants” in the amount of funds “wrongfully misappropriated

or taken[.]” According to Davis, he and, by inference, the trial court, must be allowed

to inspect Church records to determine whether the portion of a keyman life

insurance policy paid to the Church has “been properly devoted to the Church’s NATION FORD V. DAVIS

benefit.”

Determining whether actions, including expenditures, by a church’s [staff and leadership] were proper requires an examination of the church’s view of the role of the pastor, staff, and church leaders, their authority and compensation, and church management. Because a church’s religious doctrine and practice affect its understanding of each of these concepts, seeking a court’s review of the [expenditures] is no different than asking a court to determine whether a particular church’s grounds for membership are spiritually or doctrinally correct or whether a church’s charitable pursuits accord with the congregation’s beliefs. None of these issues can be addressed using neutral principles of law.

Harris, 361 N.C. at 273, 643 S.E.2d at 571 (emphasis added). What constitutes the

proper devotion of life insurance proceeds toward the Church’s benefit is an analysis

inextricably linked to ecclesiastical issues, and we cannot permit such an analysis.

5. Control of the Church

¶ 42 Davis’s civil conspiracy claim is replete with references to the Third-Party

Defendants attempting to “arrogate to themselves full control” of the Church, acting

with “no authority,” “actively work[ing] to undermine [Davis’s] leadership role,” and

terminating Davis without the “75% affirmative vote of the congregation” required

under the bylaws. Judicial engagement with claims concerning membership, roles,

and duties within the Church requires an analysis we may not conduct. See id.; NATION FORD V. DAVIS

Emory, 165 N.C. App. at 492-93, 598 S.E.2d at 670-71.2

6. Injunctive Relief

¶ 43 Finally, Davis’s prayer for relief requests a judicial determination, via

injunction, that “allow[s] [Davis] to resume his role and duties as the Bishop and

Senior Pastor of the Church” until another court order or congregational removal via

“the requirements of the New Bylaws of the Church” takes effect. He also requests a

judicial declaration “that [he] is the Bishop and Senior Pastor of the Church[,] . . .

that the purported ‘termination’ . . . was contrary to the New Bylaws[,] . . . [and] that

[his] . . . perform[ance of] his duties as the Bishop and Senior Pastor of the Church

were and are lawful[.]” According to Davis, “the New Bylaws expressly provide[] that

the Bishop of the Church can be dismissed only by a 75% vote of the congregation

attending a Special General Meeting called for that purpose. No Special General

Meeting of the congregation was convened[.]” As previously discussed, the

ecclesiastical entanglement doctrine prohibits judicial review of roles within a

church, or of what constitutes an appropriate special meeting or membership within

a church. See Harris, 361 N.C. at 273, 643 S.E.2d at 571; Emory, 165 N.C. App. at

492-93, 598 S.E.2d at 670-71. The trial court did not have subject matter jurisdiction

2 Davis also argues his mother was wrongfully terminated, but he lacks standing to

bring such a claim. See Munger v. State, 202 N.C. App. 404, 409, 689 S.E.2d 230, 235 (2010) (marks omitted) (“The rationale of the standing rule is that only one . . . personally injured . . . can be trusted to battle the issue.”), disc. rev. denied, 365 N.C. 3, 705 S.E.2d 734 (2011). NATION FORD V. DAVIS

over Davis’s request for a positive injunction in his prayer for relief.

7. Conclusion

¶ 44 Even assuming, arguendo, we should review the amended counterclaim rather

than the original counterclaim, each of Davis’s claims require judicial review of

ecclesiastical matters, which runs afoul of the ecclesiastical entanglement doctrine.

Davis’s amended counterclaim should have been dismissed for lack of subject matter

jurisdiction, and we lack subject matter jurisdiction over the amended counterclaim

on appeal. We should remand to the trial court for dismissal of the amended

counterclaim, with prejudice. Harris, 361 N.C. at 275, 643 S.E.2d at 572.

C. Lack of Subject Matter Jurisdiction Over Plaintiffs’ Complaint

¶ 45 “Whether a trial court has subject-matter jurisdiction is a question of law,

reviewed de novo on appeal. An appellate court has the power to inquire into subject-

matter jurisdiction in a case before it at any time, even sua sponte.” Henson v.

Henson, 261 N.C. App. 157, 160, 820 S.E.2d 101, 104 (2018) (citation and marks

omitted). The complaint is properly analyzed within this appeal, Davis’s original

counterclaim and amended counterclaim included an answer to the complaint, and

the Majority does not review whether the trial court had subject matter jurisdiction

over the matter from the start. See Hayes v. Turner, 98 N.C. App. 451, 454-55, 391

S.E.2d 513, 515 (1990) (“[The plaintiff’s] complaint in summary ejectment alleges that

there was no rent and that no lease existed. The record contains neither allegations NATION FORD V. DAVIS

nor evidence of a landlord-tenant relationship, and [the plaintiff] also failed to allege

any of the statutory violations. [The plaintiff’s] amended complaint also fails to assert

the required allegations for summary ejectment or for any other cause of action. We

therefore, sua sponte, conclude that the trial court lacked subject matter jurisdiction

to hear the summary ejectment action. We therefore vacate the trial court’s grant of

summary judgment for [the] plaintiff on [the] plaintiff’s cause of action and remand

for dismissal of that action.”). I would review the complaint to see whether it too runs

afoul of the ecclesiastical entanglement doctrine.

¶ 46 The complaint alleges that “[t]he Plaintiff is the owner and lawful possessor of

the Premises[,]” “[Davis] continues to attempt to hold unauthorized services and

meetings at Plaintiff’s facilities[,]” “[Davis] has disrupted the ongoing legitimate

ministries of the Plaintiff and prevented the Plaintiff from carrying on its mission[,]”

and “[Davis], by his unauthorized collection and retention of funds and by his failure

to return Plaintiff’s property, has committed conversion of Plaintiff’s property.” Much

like Davis’s counterclaims, these allegations require improper judicial inquiry into

Church governance and membership as it relates to the appropriate leaders and

owners of the premises, as well as who has the authority to approve Davis in his

attempt to hold services and meetings. See Harris, 361 N.C. at 273, 643 S.E.2d at

571; Emory, 165 N.C. App. at 492-93, 598 S.E.2d at 670-71. Further, in addition to

these allegations, the complaint requires impermissible analysis of what constitutes NATION FORD V. DAVIS

the legitimate ministry and mission of the Church: “[Davis] has disrupted the ongoing

legitimate ministries of the Plaintiff and prevented the Plaintiff from carrying on its

mission[.]” See generally Piner, 267 N.C. at 77, 147 S.E.2d at 583. Finally, the

complaint requests judicial analysis of alleged unauthorized conversion of Church

property, which is similar to Davis’s claims and those of the plaintiffs’ improper

request in Harris for judicial determination of whether expenditures were proper.

See Harris, 361 N.C. at 273, 643 S.E.2d at 571.

¶ 47 The complaint also requires judicial review of roles within and doctrine of the

Church, which runs afoul of the ecclesiastical entanglement doctrine. For this reason,

the trial court did not have subject matter jurisdiction over the complaint, and we

must remand to the trial court to dismiss it with prejudice along with the original

counterclaim and amended counterclaim. See id. at 275, 643 S.E.2d at 572.

CONCLUSION

¶ 48 Our courts may not intrude on church disputes that cannot be resolved via only

neutral principles of law. Such judicial intrusion constitutes impermissible

entanglement in ecclesiastical matters and is prohibited by the First Amendment.

The determination of issues from Davis’s original counterclaim requires judicial

review of ecclesiastical matters. Even if we were to review Davis’s amended

counterclaim, each claim still requires judicial review of ecclesiastical matters.

Finally, the original complaint similarly requires judicial review of ecclesiastical NATION FORD V. DAVIS

matters. As a result, the trial court lacked subject matter jurisdiction over the

entirety of this matter.

¶ 49 While I concur that the Order is properly before us as an interlocutory appeal,

I would reverse the trial court’s order denying the motion to dismiss for lack of subject

matter jurisdiction, rendering the issue regarding Davis’s standing moot. I would

also hold the trial court lacked subject matter jurisdiction over the complaint,

counterclaim, and amended counterclaim and remand for the trial court to dismiss

the action with prejudice. For these reasons, I respectfully dissent.