Opinion
No. CV X06 08 4020456 S
March 15, 2010
MEMORANDUM OF DECISION
STATEMENT OF THE CASE I Procedural History
The plaintiffs in this action are the Bishop Seabury Church of Groton, Connecticut (Parish), the Episcopal Church in the Diocese of Connecticut (Diocese), the Protestant Episcopal Church in the United States of America (Episcopal Church) and the Reverend Canon, David Cannon. The defendants are the former rector of the Parish, Reverend Ronald Gauss, and twelve other individuals identified in the complaint as former official members of the Parish's governing body (vestry) who hold themselves out as continuing to serve in that capacity.
The Protestant Episcopal Church in the United States of America joined in the present litigation by way of its motion to intervene, which was granted by the court, Abrams, J., on June 24, 2008.
The remaining vestry defendants are Richard Vanderslice, Arthur Hayward, Jr., Stanley Price, Deborah Gaudette, Kathy Tallardy, Barbara Stiles, Marion Ostaszewski, Shelley Steendam, Amy Ganolli, Debra Salomonson, James Conover and Everett Munro. Attorney General Richard Blumenthal was also named a defendant because of his "interest in any gifts, legacies or devises intended for public or charitable purposes" pursuant to General Statutes § 3-125. While the attorney general has appeared in the case, he has taken no part in the litigation to date.
On May 7, 2008, the plaintiffs initiated this action by way of a one-count complaint alleging a breach of trust based on the claim that the defendants wrongfully failed to relinquish the subject property after realigning themselves with a different religious organization. The plaintiffs seek: (1) a declaration from this court that the disputed Parish property is held in trust for the Episcopal Church and Diocese; and (2) an injunction prohibiting the individual defendants from their continued use of, or assertion of any rights to, the subject property.
On July 1, 2009, the defendants filed their answer along with fifteen special defenses and a counterclaim "for construction of the alleged trust." In the special defenses, the defendants contend that the plaintiffs' claims are barred because: (1) the first amendment to the United States constitution as well as Article seventh and Article first, § 3, of the constitution of Connecticut preclude this court from resolving ecclesiastical questions such as the present issue concerning church polity; (2) the plaintiffs' claims have been extinguished by the Marketable Record Title Act, General Statutes §§ 47-33b and 47-33c; (3) the doctrine of laches applies; (4) the statute of frauds applies; (5) General Statutes § 33-265, which governs the legal status and powers of ecclesiastical societies in communion with the Protestant Church, is unconstitutional; (6) agreements between the Parish and Diocese regarding the subject property, if any, were merged into the deeds which list the former as the unqualified sole owner; (7) the Diocese waived its right to any interest in the subject property when it conveyed the same to the Parish; (8) Connecticut courts "do not recognize or impose resulting trusts against non-profit charitable religious associations"; (9) the action is untimely pursuant to General Statutes § 52-576; (10) the Diocese lacks the authority, without the affirmative consent of its members, to pursue this action, and thus, any prosecution of the same is an ultra vires act; (11) the Episcopal Church similarly lacks the requisite authority to pursue this action; (12) the alleged trust is void for uncertainty because it does not sufficiently state its charitable purposes or the charitable organizations to be benefited in order to control the "conscience of a trustee"; (13) all of the defendants, with the exception of Gauss, served as volunteers for the Parish, and as such, are immune from liability for any of the acts or omissions alleged by the plaintiffs pursuant to 42 U.S.C. § 14503 and General Statutes § 52-446m; (14) any trust over the subject property in favor of the Diocese or Episcopal Church "has been revoked by the settlors by unanimous vote of the present and voting members of the Society"; and (15) "[t]he Constitutions and Canons the plaintiffs claim establish their interest in the [subject] property . . . were created by the collusive acts of Bishops and Dioceses and not by acts of [the Parish]," and therefore should not be considered binding upon the defendants.
In the counterclaim, the defendants seek the following declarations regarding any implied trust that may be found to exist: (1) the present and former members of Bishop Seabury Church are the donors/settlors of any trust; (2) the elected vestry are the trustees of the trust during their terms in office; (3) the purpose of the trust is the propagation of the Gospel in accordance with the historic faith and order; and (4) the beneficiaries of the trust are those individuals, entities and ministries selected by the trustees to fulfill the purpose of propagating the Gospel in accordance with the historic faith and order. The defendants also seek a declaration from the court regarding "the nature and priority of the beneficial interests, if any, of the members of the local church, the Diocese, and the Episcopal Church."
On July 31, 2009, the plaintiffs filed a joint motion for summary judgment, arguing that as a subordinate unit within the hierarchy of the Episcopal Church, all of the Parish's property was held in trust for the mission of the Episcopal Church and Diocese, and should have been relinquished when members of the Parish chose to affiliate with a different religious organization. In response, the defendants argue that: (1) the polity of the Episcopal Church is not hierarchical; (2) the claim of implied trust is not supported by the law or facts of the present case; and (3) their special defenses preclude the court from granting the plaintiffs' motion for summary judgment.
The plaintiffs subsequently filed a responsive memorandum in support of their motion for summary judgment on October 30, 2009.
On October 15, 2009, the defendants filed a joint cross motion for summary judgment. In support of this motion, the defendants reiterate the arguments asserted in their first and second special defenses that the plaintiffs' claims fail as a matter of law because the court is without the authority to adjudicate matters of church polity and said claims are barred by the Marketable Record Title Act.
The plaintiffs filed a memorandum in opposition to the defendants' motion for summary judgment on October 30, 2009. Oral argument on both motions was heard by the court on December 16, 2009.
II Statement of the Facts
The parties have submitted voluminous materials in support of their positions. The court does not find it necessary to comment on all the information that has been filed. Based on the parties' submissions, the court finds the following facts to be undisputed and pertinent to the disposition of the pending motions for summary judgment.
In 1875, the Right Reverend John Williams, then-bishop of the Diocese, organized the Bishop Seabury Church as a mission with the consent of the Diocese's Standing Committee. (Plaintiffs' Exhibit 11.) The first church building was constructed the same year and consecrated thereafter by Williams under the name of "Bishop Seabury Memorial Church," in honor of the first bishop of the Episcopal Church and of the Diocese of Connecticut. (Plaintiffs' Exhibit 12.)
In Trinity-St. Michael's Parish, Inc. v. Episcopal Church in the Diocese of Connecticut, 224 Conn. 797, 814 n. 17, 620 A.2d 1280 (1993), the Supreme Court states the following regarding the Episcopal Church ceremony of consecration: "The ceremony of consecration has more than just religious significance; the ceremony involves the dedication of a building for a particular purpose, namely the worship of services in the building according to the doctrine of the Episcopal Church. If the building is no longer used for that purpose, it is deconsecrated. Moreover, only after individuals wishing to form a parish represent to the diocese that they will hold their property in this way are they considered for admission into the diocese as a parish."
In 1956, the Bishop Seabury Memorial Church sought to be constituted as an official parish admitted into union with the Diocese in a manner conforming with the requirements set forth in Diocesan canon I. (Plaintiffs' Exhibit 14.) Accordingly, the executive committee and members of the Bishop Seabury Memorial Church mission congregation reviewed the canonical requirements for becoming a parish and on February 20, 1956, resolved to pursue the necessary means for admission. Id. Four days later, the Bishop Seabury Memorial Church sent its official written request for permission to form as a parish to then-bishop Walter Gray. On April 28, 1956, Gray constituted Bishop Seabury Memorial Church as a parish and directed the church to complete the forms necessary for formal admission into union with the Diocese per Diocesan canon 1.2. (Plaintiffs' Exhibits 14, 15 and 18.) Notably, the first of these required documents was a "form of organizing the Parish," which states in relevant part: "We the subscribers . . . do hereby unite to form and do hereby form ourselves and our successors into an Ecclesiastical Society . . . under the Constitution and Canons of the Protestant Episcopal Church in the Diocese of Connecticut, for the purpose of supporting the Worship of Almighty God according to the Doctrine, Discipline and Liturgy of said Church in these United States . . ." (Plaintiffs' Exhibit 13.)
After the Parish's completion of the necessary forms, and their subsequent approval by the Diocesan Standing Committee and Committee on Admission of New Parishes, the Parish was officially admitted into union with the Diocese at its 172nd Annual Convention on May 15, 1956. (Plaintiffs' Exhibits 14, 15 and 16.) Thereafter, in July of 1956, the Missionary Society of the Diocese quit-claimed the Bishop Seabury Memorial Church property to the Parish in "three pieces." (Plaintiffs' Exhibit 18.) The third piece of said property was located at 808 Eastern Point Road in Groton, Connecticut (Eastern Point Road property). This property on Eastern Point Road would serve as the Parish rectory. Id. The following is a summary of the subsequent, relevant real estate transactions leading up to the commencement of the instant litigation.
In September of 1963, the Parish held a special meeting in which members voted to purchase a piece of property on Hazelnut Hill in Groton, Connecticut (Hazelnut Hill property). (Plaintiffs' Exhibit 19.) The following month, the Parish sought and obtained approval from the Diocese to acquire a loan to finance this purchase. Id.
In 1965, the Parish sought and received the consent of the bishop and Standing Committee to sell the Eastern Point Road property to purchase a lot for use as a new rectory at 121 Maxson Road Extension, which would later be renamed Azalea Drive, in Groton, Connecticut (Azalea Drive property). (Plaintiffs' Exhibit 20.) In accordance with its agreement with the Diocese, the purchase was funded by the proceeds from the sale of the Eastern Point Road property and a purchase-money mortgage on the Azalea Drive property. Id. In its correspondence with the Diocese, the Parish expressly acknowledged its canonical obligation to obtain the permission of the bishop and Standing Committee to enter into these transactions. Id.
In 1966, the Parish sought and received permission from the Diocese to acquire property on North Road (North Road property) in order to construct a new church facility. (Plaintiffs' Exhibit 21.) The North Road property was to be acquired in two adjacent parcels — the first as a gift from one Robert Graham, and the second by purchase. Id. In order to finance the purchase of the second parcel, the Parish sought and received the Diocese's express permission to remortgage the Azalea Drive property and sell the Hazelnut Hill property. Id. After obtaining the consent of the bishop and Standing Committee, the Parish took title to the two adjacent parcels in July and August of 1966, respectively. (Plaintiffs' Exhibits 21 and 22.) The North Road property currently serves as the Parish's primary place of worship.
Shortly after receiving title to the first parcel, the Parish clerk wrote to Graham to acknowledge the church's gratitude, stating that the "generous gift of property on North Road . . . [would] become part of a lasting development by the Episcopal Church in the Diocese of Connecticut." (Emphasis added.) (Plaintiffs' Exhibit 12.)
In 1967, the Parish sought permission from the Diocese to sell the remaining "two pieces" of property it acquired from the Missionary Society of the Diocese in 1956, contingent upon the Parish's relocation to its new facility on the North Road property. (Plaintiffs' Exhibit 23.) With the consent of the Standing Committee, the bishop granted permission to this requested sale with the express understanding that: (1) the Parish would retain exclusive use of the properties to be sold until a new place of worship could be erected; and (2) after the last church-service, all Christian symbols would be removed and the church would be secularized, of unconsecrated (Plaintiffs' Exhibits 23 and 24). In compliance with the bishop's directive, the new church was constructed, and on March 3, 1968, the Parish's former church building was secularized by the Suffiagan Bishop of Connecticut, John Esquirol, who pronounced the property "unconsecrated, and no longer within our canonical jurisdiction." (Plaintiffs' Exhibit 24.)
In a March 5, 1968 letter to the bishop, then-rector of the Parish, Reverend Robert Watson, remarked that the parishioners were "very much aware of the responsibilities that rest upon us, the least of which is not to demonstrate to the Diocese that their generous assistance was not in vain!" (Plaintiffs' Exhibit 24.)
In April of 1983, the Parish sought the Diocese's permission to sell the Azalea Drive property, acknowledging that the request was governed by the "Diocese memorandum entitled Adniinistration/Finance-360, Procedures for Real Estate Sales of Encumbrances." (Plaintiffs' Exhibit 27.) The Diocese consented to the transaction, and in consideration of the fact that this property was used as the rectory, its consent was conditioned on the requirement that the Parish invest the proceeds and use any dividends or interest to pay the rector a housing allowance. Id.
Thus, this history of the Parish may be summarized as follows:
in 1875, the Bishop Seabury Church was organized as a mission with the consent of the Diocese's Standing Committee;
in 1956, the Bishop Seabury Memorial Church sought to be constituted and was constituted as an official parish admitted into union with the Diocese in a manner conforming with the requirements set forth in Diocesan canon I;
in 1963, the Parish sought and received approval from the Diocese to acquire a loan to finance the purchase of the Hazelnut Hill property;
in 1965, the Parish sought and received the consent of the bishop and Standing Committee to sell the Eastern Point Road property and purchase the Azalea Drive property;
in 1966, the Parish sought and received permission from the Diocese to acquire the North Road property;
in 1966, the Parish sought and received the Diocese's permission to remortgage the Azalea Drive property and sell the Hazelnut Hill property;
in 1967, the Parish sought and received permission from the Diocese to sell the two remaining pieces of property that it had acquired from the Missionary Society of the Diocese in 1956; and
in April of 1983, the Parish sought and received the Diocese's permission to sell the Azalea Drive property.
After being admitted into union with the Diocese in 1956, this history indicates that the Parish did not acquire, use, encumber or dispose of its properties in any independent manner separate and distinct from a consideration of the authority or interests of the general church. Stated conversely, the history of the relationship between the Parish and the Diocese as to these major property transactions indicates that they were completed with the Parish's recognition and appreciation that authorization first needed to be requested and acquired from the Diocese.
On October 29, 2007, the defendant Gauss, then-rector of the Parish, submitted an application for retirement to the church pension fund, indicating his intention to retire from active ministry on December 1, 2007. (Plaintiffs' Exhibit 51.) Bishop Andrew Smith approved the application on November 13, 2007, whereupon Gauss' retirement became effective and he began drawing retirement benefits from the pension fund. (Plaintiffs' Exhibit 51; Smith, Affidavit ¶ 64.) On November 14, 2007, one day after Gauss' retirement became effective, the defendants Vanderslice and Hayward, purporting to write on behalf of the Parish's wardens and vestry, informed the bishop by letter that "the parish [had] affiliated itself with the Convocation of Anglicans in North America (CANA)." (Plaintiffs' Exhibit 52.) CANA, which publically purports to be a mission of the Anglican Church of Nigeria, is not a part of the Episcopal Church or Diocese.
Subsequently, on January 10, 2008, having determined that all the then-wardens and vestry members of the parish had aligned themselves with CANA and away from the Episcopal Church, Smith removed each defendant from their respective position at the Parish, notifying them of his actions in writing. (Plaintiffs' Exhibit 54; Smith, Affidavit ¶ 70.) The bishop furthermore demanded that the defendants relinquish their possession and use of the subject property, to which the latter refused. (Plaintiffs' Exhibits 54 and 55.)
On February 29, 2008, pursuant to Episcopal Church canon III.9.3, Smith appointed the plaintiff Reverend Canon David Cannon as priest-in-charge of the Parish and remanded members who wished to remain affiliated with the Episcopal Church to his care. (Plaintiffs' Exhibits 56 and 57.) Cannon's demands to be given the use and possession of the church property, however, have been refused by the defendants to date. (Plaintiffs' Exhibits 54 and 55.)
DISCUSSION I
Practice Book § 17-49 provides that summary judgment shall be granted "if the pleadings, affidavits and any other proof submitted show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." "The party seeking summary judgment has the burden of showing the absence of any genuine issue [of] material facts which, under applicable principles of substantive law, entitle him to a judgment as a matter of law . . . and the party opposing such a motion must provide an evidentiary foundation to demonstrate the existence of a genuine issue of material fact." (Internal quotation marks omitted.) Schilberg Integrated Metals Corp. v. Continental Casualty Co., 263 Conn. 245, 252, 819 A.2d 773 (2003). "In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party." (Internal quotation marks omitted.) Id.
Therefore, in order to prevail on their motion for summary judgment, the plaintiffs must prove that there are no genuine issues of material fact in dispute and that the subject property was held in trust for the mission of the Episcopal Church and state Diocese. Conversely, for the defendants to succeed on their motion for summary judgment, they must prove beyond genuine factual dispute that the subject property was not held in trust for the benefit of said plaintiffs as part of the strictures of a hierarchal religious structure.
II Constitutionality of Determining the Parties' Property Dispute
The court first addresses the defendants' claim that the United States and Connecticut constitutions preclude this court from resolving the parties' dispute regarding ownership of the property in question because ecclesiastical questions are involved. The defendants assert this argument in their first special defense; repeat it in their memorandum in opposition to the plaintiffs' motion for summary judgment; and reference it in their memorandum in support of their own motion for summary judgment.
Constitutional protections preclude a civil court "from resolving church property disputes by inquiring into and resolving disputed issues of religious doctrine and practice." Trinity-St. Michael's Parish, Inc. v. Episcopal Church in the Diocese of Connecticut, 224 Conn. 797, 801, 620 A.2d 1280 (1993). On the other hand, the law is well settled that when property disputes can be resolved without entanglement in religious doctrine, "[c]ivil courts have the general authority to resolve the question of church property ownership. Jones v. Wolf, 443 U.S. 595, 602, 99 S.Ct. 3020, 61 L.Ed.2d 775 (1979); New York Annual Conference of the United Methodist Church v. Fisher, 182 Conn. 272, 281, 438 A.2d 62 (1980) . . . The State has an obvious and legitimate interest in the peaceful resolution of property disputes and in providing a civil forum where the ownership [and control] of church property can be determined conclusively." (Internal quotation marks omitted.) Trinity-St. Michael's Parish, Inc. v. Episcopal Church in the Diocese of Connecticut, supra, 224 Conn. 800. Therefore, "[w]here the nature of the relationship may, without entanglement in religious doctrine, be judicially determined by reference to the polity of the church, by its constitution and canons, and by the clear factual evidence regarding the historical subordinate relationship between the local church and the general church, there is no reason for a court not to enforce the terms of that relationship." CT Page 6973 Id., 806.
"`Polity' refers to the particular system of church government upon which church members have agreed, including the structural allocation of authority within the church and the established procedures for resolving internal disputes . . . A hierarchical organization has been defined by the United States Supreme Court as a general organization of churches having similar faith and doctrine with a common ecclesiastical leader . . . Under the episcopal form of polity, all authority reposes in certain ecclesiastical officers." (Citations omitted; internal quotation marks omitted.) Trinity-St. Michael's Parish, Inc. v. Episcopal Church in the Diocese of Connecticut, supra, 224 Conn. 804, n. 8.
In the present case, the court finds that the parties' dispute may be adjudicated by referencing the local and general church's historical relationship, as well as the polity, constitutions and canons of the Episcopal Church and Diocese without considering substantive issues of religious faith. In short, the court can decide the parties' property dispute without addressing or resolving the underlying controversy over religious doctrine. Therefore, contrary to the defendants' argument, the court's consideration of the parties' property dispute does not run afoul of the parties' rights under either the United States or Connecticut constitutions. See Id., 800.
III Existence of Implied Trust
"[I]n resolving ownership disputes over church property, a civil court must first determine whether an express trust exists, and if it does, the court must enforce its terms. If no express trust is found, the court must determine whether an implicit trust exists in favor of the general church." Id., 804. Because the plaintiffs have not alleged or demonstrated that the Parish subscribed to an express trust provision at the time of any relevant real estate transaction, the dispositive issue is whether they have proven, beyond genuine factual dispute, an implied trust over the subject property in their favor. In determining the existence of an implied trust, the court considers the totality of the relevant facts, including the conduct of the parties, the nature of their relationship, and the documentary evidence bearing on the issue. "In conducting this inquiry, the court must examine the polity of the church, in addition to the church constitution and its canons, for language of trust in favor of the general church." Id.
With regard to the threshold issue of church polity, the court agrees with the conclusion reached by the Supreme Court in Trinity-St. Michael's Parish that on the basis of its constitution and canons, the Episcopal Church is a hierarchical religious organization. Id., 807. "The [Episcopal Church] was established in 1789 by the General Convention of the Episcopal Church in Philadelphia, Pennsylvania. It . . . consists of . . . geographical dioceses that are presided over by a bishop, who is the ecclesiastical authority. Each diocese is made up of a confederation of congregations, known as parishes, located in its geographic area. Parishes that are affiliated with [the Episcopal Church] hold their membership in a diocese of the church, and not in the general church. [The Episcopal Church] is governed by the General Convention of the Episcopal Church and by the Episcopal Church's own constitution and canons. The Episcopal Church's legislative body is the General Convention of the Episcopal Church, consisting of the House of Bishops and the House of Deputies, either of which may originate and propose legislation. The General Convention has enacted a constitution and a set of church laws, known as canons, by which all affiliated dioceses and local churches are bound. Additionally, each diocese has its own supplementary constitution and set of canons by which each diocese and its local parishes are bound. The Episcopal Church in the Diocese of Connecticut is a constituent part of [the Episcopal Church], and accedes to, recognizes and adopts the General Constitution of [the Episcopal Church] and acknowledges the authority of the Episcopal Church thereunder." Id., 807-08.
Connecticut statute also provides guidance on this issue. General Statutes § 33-265 provides in relevant part: "All ecclesiastical societies in this state, in communion with the Protestant Episcopal Church in the United States of America, shall be known in the law as parishes . . . and shall have power to receive and hold . . . property . . . that has been or may be conveyed to them for maintaining religious worship according to the doctrine, discipline and worship of said church, and for the support of the educational and charitable institutions of the same . . ." (Emphasis added.) Moreover, "[t]he manner of conducting the parish, the qualifications for membership of the parish and the manner of acquiring and terminating such membership . . . shall be such as are provided and prescribed by the constitution, canons and regulations of said Protestant Episcopal Church in this state." (Emphasis added.) General Statutes § 33-266.
The defendants rely on affidavits from two purported experts, George C. Conger and Reverend William Wantland, in support of their argument that the Episcopal Church is not hierarchal. The court rejects the defendants' contention on two grounds. First, the legal precedent on this question, all premised on the Episcopal Church's governing documents, is now too well settled for dispute. As previously stated, our Supreme Court has concluded that the Episcopal Church is hierarchal. Trinity-St. Michael's Parish, Inc. v. Episcopal Church in the Diocese of Connecticut, supra, 224 Conn. 807. Furthermore, the defendants raised this precise issue in an earlier case brought by the defendants against the Diocese in the District Court of Connecticut. In dismissing that action, the federal court rejected the defendants' position that the Episcopal Church is not hierarchal. Parish of St. Paul's Episcopal Church v. The Episcopal Diocese of Connecticut Donations Bequests For Church Purposes, Inc., United States District Court, Docket No. 3:05cv1505 (D.Conn. August 21, 2006) (church and diocese constitutions and canons support conclusion that Episcopal Church is a "hierarchical religious denomination"). Accord Dixon v. Edwards, 290 F.3d 699, 715-16 (4th Cir. 2002); In re: Church of St. James the Less, 888 A.2d 795, 810 (Pa. 2005); Bishop Diocese of Colo. v. Mote, 716 P.2d 85, 110 (Colo. 1986); Protestant Episcopal Church of the Diocese of N.J. v. Graves, 417 A.2d 19, 25 (N.J. 1980); Trustees of the Diocese of Albany v. Trinity Episcopal Church of Gloversville, 250 App.Div.2d 282, 684 N.Y.S.2d 76 (1999); Bennison v. Sharp, 329 N.W.2d 466, 475 (Mich.Ct.App. 1982).
Consequently, in the face of this dispositive body of law, the affidavits of Conger and Wantland are insufficient to raise a genuine factual dispute regarding the hierarchal structure of the Episcopal Church. Moreover, although the court has reviewed the affidavits of Conger and Wantland, this extrinsic evidence does not control the court's consideration of questions that are amenable to resolution by the court's interpretation of the plain language of the pertinent governing documents. See Chamberland v. Labonte, 99 Conn.App. 464, 471 n. 3, 913 A.2d 1129, cert. denied, 282 Conn. 912, 924 A.2d 137 (2007) (trial court properly rejected expert testimony as an "improper [effort] to proffer legal conclusions that invaded the province of the court and did not create issues of fact . . . The trial court did not abuse its discretion in so ruling despite the expert witness' representation that his views were based on his personal knowledge and expertise").
In regard to the church's operating documents, the plaintiffs argue that the canons and constitutions of the Episcopal Church and Diocese evidence the existence of an implied trust in the Parish property. The court agrees. Specifically, the plaintiffs refer the court to Diocesan canons 1.2, 1.9 and 1.14, which detail the: (1) requirements for the admission of a church into union with the Diocese; (2) restrictions on any subsequent alienation and/or encumbering of parish property; and (3) process by which a parish may terminate its parochial organization, respectively. Diocesan canon 1.14 explicitly provides: "Any Parish desiring to terminate or to suspend its parochial organization, may do so by vote of two-thirds of the adult communicants in good standing entitled to vote present at a Parish meeting legally warned for that purpose, with the approval of and under such conditions as shall be required by the Bishop and Standing Committee provided that such conditions shall include the valid transfer by the Parish to the Missionary Society of the Diocese of Connecticut of all right, title and interest of such Parish to all property, real and personal, theretofore owned or controlled by it, and the valid and effective succession of said Society to all fiduciary rights and obligations of such Parish." (Emphasis added.)
The defendants counter, arguing alternatively that the canons and constitutions recognize the independent authority of the Parish vestry or that summary judgment is unavailable because the canons and constitutions are unclear. To support this contention, the defendants rely primarily on Diocesan canon 1.9, which confers upon the Parish vestry the authority to alienate or encumber church property under certain conditions. According to the defendants, Diocesan canon 1.9 prevents the plaintiffs from successfully asserting a right to an implied trust over the subject property insofar as it reveals their unqualified "authority" on property issues.
Diocesan canon 1.9 states in relevant part: "The property . . . of the Parish shall be subject to the direction, management, and control of the Vestry; except that the . . . election of a Rector, the disposition of the real estate of the Parish and the borrowing or lending of money shall not [be] within the control of the Vestry, unless by special vote of the Parish . . ." (Emphasis added.)
The defendants' reliance on this language of Diocesan canon 1.9 in order to interject ambiguity in the interpretation of the canons, however, is misplaced because Diocesan canons 1.14 and 1.9 do not conflict. The court finds the Supreme Court's decision in Trinity-St. Michael's Parish persuasive and controlling on this issue. Although a parish is "allowed to exercise discretion in the management and control of their property . . . [the] canons of the Diocese . . . are indicative of the bilateral and consensual relationship between the Diocese and a parish. While the property and business affairs of a parish are generally subject to the discretion, management and control of the vestry, the property of a parish may be acquired in the first place only for the purposes set forth in the canons: to support worship according to the doctrine and discipline of [the Episcopal Church] and pursuant to the constitution and canons thereof." Trinity-St. Michael's Parish, Inc. v. Episcopal Church in the Diocese of Connecticut, supra, 224 Conn. 813.
Thus, the court rejects the defendants' argument that the plaintiffs' motion for summary judgment must be denied because these canons are unclear or ambiguous. The court will not import ambiguity when there is none. See Tremaine v. Tremaine, 235 Conn. 45, 57, 663 A.2d 387 (1995) ("A court will not torture words to import ambiguity where the ordinary meaning leaves no room for ambiguity"). Any ambiguity in the provisions of a document must emanate from the language used "rather than from one party's subjective perception of the terms." (Internal quotation marks omitted.) Id. "Moreover, the mere fact that the parties advance different interpretations of the language in question does not necessitate a conclusion that the language is ambiguous." (Internal quotation marks omitted.) Stephan v. Pennsylvania General Ins. Co., 224 Conn. 758, 764, 621 A.2d 258 (1993). A fair reading of the canons at issue clearly indicate that although the Parish has the discretionary right to manage, as well as encumber and/or alienate church property under certain delineated conditions, Diocesan canon 1.14 provides that it could not terminate its parochial organization without first transferring church property back to the Diocesan Missionary Society. Indeed, both "[c]ourts in this and other jurisdictions have consistently held that, although the members of a local church may secede from a hierarchical system, they cannot secede and take the church property with them." New York Annual Conference v. Fisher, supra, 182 Conn. 286.
In opposition to the plaintiffs' motion for summary judgment, the defendants also maintain that because an implied trust claim implicates the intent of the parties, evidence on the defendants' subjective understandings about their relationship with the Episcopal Church and Diocese creates disputed factual issues precluding summary disposition. Specifically, the defendants contend that they should be afforded the opportunity to establish at trial that it was their understanding that the Parish did not maintain a subservient relationship with the Diocese and that they would not forfeit Parish property "if at some time in the future the Diocese disagreed with the vestry's actions." This argument fails for the following reasons. Extrinsic evidence regarding the subjective intent of the defendants or other church members cannot be used to alter the plain language of the governing documents that are dispositive of the parties' dispute. Where "no express trust is found, the court must determine, by examining the church constitution, canons and polity, or system of church government agreed to by the members, whether an implied trust in favor of the general church exists." (Emphasis added.) Trinity-St. Michael's Parish, Inc. v. Episcopal Church in the Diocese of Connecticut, supra, 224 Conn. 797.
To explain further, as the court has previously discussed, the constitutions and canons of the Episcopal Church and Diocese create a hierarchal religious structure that evidence the general church's interests in the local parishes. Moreover, the facts establish that in 1956, the Bishop Seabury Memorial Church signed and submitted a "form of organizing the Parish" per Diocesan canon 1.2, in which it resolved to become an Ecclesiastical Society subordinate to the constitution and canons of the Episcopal Church in the Diocese of Connecticut. Finally, the history between the Parish and the Diocese indicate that the Parish recognized and appreciated this alignment with the Episcopal Church and Diocese, thereby acknowledging and accepting their constitutions and canons. Thus, the defendants fail to explain how the contrary views of individual Parish-members are sufficient to undermine the legal significance of this alignment and the cognizable trust associated with this alignment that is premised on the canons of the general church to which the Parish is subject. "If a trust has been implicitly acknowledged by the parties and is embodied in some legally cognizable form, it must be respected." Id., 806.
Appreciating that Trinity-St. Michael's Parish involved a disposition after trial, rather than on a motion for summary judgment, the court nevertheless rejects the defendants' arguments that genuine factual disputes remain and that Trinity-St. Michael's Parish is not applicable and controlling on this issue.
Unquestionably, matters pertaining to property and the business affairs of [the Episcopal Church], dioceses and parishes are governed by the canons of [the Episcopal Church] and of the diocese. These canons and the constitution also illustrate the manner in which a parish accedes to the authority of the diocese in matters both spiritual and temporal and in which the diocese accedes to the authority of [the Episcopal Church]. Article 1 of the constitution of the Diocese provides that the Diocese, as a constituent part of [the Episcopal Church], accedes to, recognizes and adopts the general constitution of that church and acknowledges its authority accordingly. The Diocesan canons provide for the formation of parishes only with the authority of the bishop. Under the Diocesan canons, persons wishing to form a parish must request permission from the Diocese to unite as a parish under the laws of the church. If approved, the Diocese admits the parish into union with the Diocese and grants a certificate of permission for the organization of the parish. Similarly, no parish may terminate its membership in the Diocese without the permission of the bishop. Although none of [the] canons specifically [control] whether an express trust for real or personal property exists, combined with the constitution and canons of [the Episcopal Church] and the Diocese, the canons pervasively govern matters both spiritual and temporal within the Episcopal Church, its dioceses and parishes. They strongly reflect the polity of the church as one in which the parish is the local manifestation of [the Episcopal Church] to be used for its ministry and mission.
Trinity-St. Michael's Parish, Inc. v. Episcopal Church in the Diocese of Connecticut, supra, 224 Conn. 808, n. 13.
Accordingly, after a careful review of the facts surrounding the relationship between the Parish and general church, and of the constitution and canons of the latter, the court finds support in the plaintiffs' position that an implied trust in the Parish property exists in their favor. Thus, they are entitled to summary judgment unless any of the defendants' special defenses preclude this disposition.
IV Defendants' Motion For Summary Judgment and Special Defenses
The defendants assert a myriad of defenses arguing that each precludes this court from rendering summary judgment for the plaintiffs. The first special defense regarding the constitutionality of the court's adjudication of the parties' property dispute has been previously discussed and rejected. The remaining special defenses are examined in order.
In their second special defense and as part of their motion for summary judgment, the defendants argue that the plaintiffs' claims have been extinguished by the Marketable Record Title Act, General Statutes §§ 47-33b, 47-33c. This argument is premised on the position that the plaintiffs' interests were never recorded in the Groton land records. The defendants, however, have not cited any authority (and the court has not located any authority) indicating that an "implied trust" interest must be recorded under the provisions of the Marketable Record Title Act. On the contrary, the court concludes that a recording under the Marketable Record Title Act is not a prerequisite to establishing the existence of an implied trust. See Trinity-St. Michael's Parish, Inc. v. Episcopal Church in the Diocese of Connecticut, supra, 224 Conn. 819, n. 21 ("Whether a parish holds record title . . . is not dispositive of whether a trust agreement exists"). The plaintiffs do not seek to change the record title to the subject property, but rather, seek to obtain declaratory and injunctive relief regarding their right to possess this property premised on the relationship between the Parish and the Episcopal Church and Diocese. Thus, the Marketable Record Title Act is inapplicable.
The defendants' third special defense is based on the doctrine of laches. "Laches occurs when neglect or omission to assert a right taken in conjunction with lapse of time and other circumstances, causes prejudice to an adverse party so as to operate as a bar to relief in equity . . . Laches consist of two elements. First, there must have been a delay that was inexcusable, and, second, that delay must have prejudiced the defendant . . . The mere lapse of time does not constitute laches." (Citations omitted; internal quotations omitted.) Traggis v. Shawmut Bank of Connecticut, N.A., 72 Conn.App. 251, 262, 805 A.2d 105, cert. denied, 262 Conn. 903, 810 A.2d 270 (2002). The defendants' laches defense fails as a matter of law because, under the circumstances presented here, there has been no inexcusable delay in the institution of this action causing prejudice to the defendants. This litigation was commenced within six months after the defendants' refusal to relinquish the subject property following their dispute with the Episcopal Church and Diocese. Although the defendants correctly note that an adjudication of the plaintiffs' implied trust claim involves a consideration of facts about the past history of the parties' relationship, the initiation of civil proceedings to assert the implied trust claim was triggered by the defendants' actions essentially rejecting its existence.
In their fourth special defense, the defendants allege that the plaintiffs' implied trust claim fails because it is not in writing, and therefore violates of the statute of frauds, General Statutes § 52-550. This defense, however, necessarily fails, because "[t]he statute of frauds does not extend to implied trusts because the intention is evidenced by conduct rather than by language." Farrah v. Farrah, 187 Conn. 495, 501, 446 A.2d 1075 (1982).
Section 52-550 provides in relevant part: "[N]o civil action may be maintained in the following cases unless the agreement, or a memorandum of the agreement, is made in writing and signed by the party . . . to be charged . . . (4) upon any agreement for the sale of real property or any interest in or concerning real property."
The court also notes the plaintiffs' argument that the statute of frauds is inapplicable based on the documents submitted in 1956 for the-then mission to become a parish in union with the Episcopal Church and Diocese, under the constitutions and canons of the same.
In their fifth special defense, the defendants argue that, to the extent that the plaintiffs rely on General Statutes §§ 33-265 and 33-266 to support their claims, these statutes are unconstitutional. As discussed previously, these statutes address the legal status and powers of ecclesiastical societies in communion with the Episcopal Church. The plaintiffs' implied trust claim is premised less on these statutes than on the constitutions and canons of the Diocese and Episcopal Church.
In any event, the defendants have already litigated their claims under the federal constitution in the earlier case they instituted in the District Court, Parish of St. Paul's Episcopal Church v. The Episcopal Diocese of Connecticut, supra. In that case, the federal court dismissed the defendants' complaint on the grounds that their claims failed to assert cognizable claims under the first amendment to the United States constitution. In so ruling, Judge Arterton stated that "Bishop Smith did not need [ §§ 33-265 and 33-266] in order to assert his authority over the plaintiff parishes. His authority is inherent in the church's organization. The constitution and canons show that Episcopal parishes generally, as well as those in the Diocese of Connecticut, have bound themselves as part of this hierarchy to follow the church's governing dictates regardless of any state statutes. It is the internal policies and procedures of the church, not the statutes, that plaintiffs actually challenge." Based on this reasoning, the federal court dismissed the defendants' claims premised on the first amendment to the United States constitution. The court finds this reasoning persuasive and dispositive of the defendants' claims under Article first, § 3, and Article seventh of the Connecticut constitution.
The defendants' sixth and seventh special defenses entitled "merger" and "waiver" both contend that the Diocese relinquished its right to the subject property when its Missionary Society executed the 1956 quitclaim deed to the newly admitted Parish. This argument is creative, but nevertheless meritless. The defendants' argument appears to be premised on their position that an implied trust in favor of the plaintiffs can only be based on an express writing or recording of this interest that contradicts the recorded title of Bishop Seabury Church. This argument fails because "[w]hether a parish holds record title . . . is not dispositive of whether a trust agreement exists." Trinity-St. Michael's Parish, Inc. v. Episcopal Church in the Diocese of Connecticut, supra, 224 Conn. 819, n. 21. The defendants' argument is also deficient because it fails to address the formal alignment of the Parish with the Episcopal Church and Diocese in 1956, and the subsequent history between the Parish and the Diocese regarding the Parish's major property transactions.
In their eighth special defense, the defendants argue that Connecticut courts do not recognize or impose resulting trusts against nonprofit charitable religious associations and that the alleged trust is void for uncertainty. To support this defense, the defendants rely on Carol J. Herzog Foundation, Inc. v. University of Bridgeport, 243 Conn. 1, 9, 699 A.2d 995 (1997), where the Supreme Court concludes "that it is clear that the general rule at common law was that a donor had no standing to enforce the terms of a completed charitable gift unless the donor had expressly reserved a property interest in the gift." Accord Russell v. Yale University, 54 Conn.App. 573, 578, 737 A.2d 941 (1999). Based on this holding, the defendants reason as follows: "At common law, a donor who has made a complete charitable contribution, whether as an absolute gift or in trust, had no standing to bring an action to enforce the terms of his or her gift or trust unless he or she has expressly reserved the right to do so . . . In this case, it appears that the plaintiffs believe that the conveyance to the [Bishop Seabury Church] in 1956 `resulted' in a trust. Since the Bishop Seabury Church is a non-profit charitable association the conveyance did not, as a matter of law, result in a trust and the plaintiffs' claims must fail." (Defendants' Memorandum in Opposition to Plaintiffs' Joint Motion for Summary Judgment, dated October 15, 2009, p. 45.)
In short, the defendants contend that the plaintiffs lack standing to make an implied trust claim. Appreciating that this contention essentially conflicts with the Supreme Court's holding in Trinity-St. Michael's Parish where the court recognized such a trust, the defendants suggest that the court's later decision in Carol J. Herzog Foundation implicitly overrules Trinity-St. Michael's Parish. The defendants' reasoning fails for numerous reasons.
First, the Supreme Court's decisions in Carol J. Herzog Foundation and Trinity-St. Michael's Parish are distinguishable because the former concerned a "resulting trust," whereas the second decision concerned an "implied trust." Although these concepts are often used interchangeably, their differences are significant in the context of these two cases. A resulting trust is a "trust imposed by law when property is transferred under circumstances suggesting that the transferor did not intend for the transferee to have the beneficial interest in the property." Black's Law Dictionary, Seventh Edition. In Carol J. Herzog Foundation, the Supreme Court concluded that a resulting trust in favor of a donor is not recognized as to the donor's charitable gift in the absence of a special reservation. Carol J. Herzog Foundation, Inc. v. University of Bridgeport, supra, 243 Conn. 9, n. 5.
An implied trust arises by implication of law by the actions and conduct of the parties. Cf. Farrah v. Farrah, supra, 187 Conn. 501 ("The statute of frauds does not extend to implied trusts because the intention is evidenced by conduct rather than by language"). An implied trust may arise as part of or after an express grant or transfer, and therefore, contrary to the defendants' position, the implied trust claimed by the plaintiffs is not controlled by the circumstances of the 1956 quitclaim deed to Bishop Seabury Church. As indicated by the Supreme Court in Trinity-St. Michael's Parish the existence of an implied trust is determined by an evaluation of the totality of the pertinent circumstances. Trinity-St. Michael's Parish, Inc. v. Episcopal Church in the Diocese of Connecticut, supra, 224 Conn. 797. Thus, the court rejects the defendants' argument that Trinity-St. Michael's Parish is inapplicable or distinguishable from the present case because of the Supreme Court's subsequent holding regarding resulting trusts in Carol J. Herzog Foundation.
Furthermore, the defendants' exact arguments raised in their eighth and twelfth special defenses were asserted previously in their motion to dismiss, which was denied by the court, Shortall, J., on February 4, 2009. This ruling is the law of the case. In that decision, Judge Shortall stated the following:
The "special interest" exception to the general rule that beneficiaries of a charitable trust may not bring an action to enforce it, however, gives the diocese standing to sue. To qualify for that exception a plaintiff must plead "sufficient facts to demonstrate that he is entitled to receive a benefit under the trust that is not merely the benefit to which members of the public in general are entitled." (Internal quotation marks and citation omitted.) Grabowski v. City of Bristol, Superior Court, judicial district of Hartford-New Britain at New Britain, Docket No. CV 95-468889, 1997 Super.Ct. 6952, 6957 (June 3, 1997) [ 198 Conn. L. Rptr. 623] aff'd, 64 Conn.App. 448 (2001). The diocese satisfies the criteria set forth in Grabowski, in that it has plead "sufficient facts to demonstrate that [it] is entitled to receive a benefit under the trust that is not merely the benefit to which members of the public in general are entitled."
Moreover, pursuant to canons of the Church and the diocese, it has reserved control over and a right of reverter in the trust property. See Complaint, ¶¶ 33, 36, 42 and 43. "By expressly reserving a property interest such as a right of reverter, the donor of the gift or the settlor of the trust may bring himself and his heirs within the `special interest' exception . . . to the general rule that beneficiaries of a charitable trust may not bring an action to enforce the trust, but rather are represented exclusively by the attorney general." Carl J. Herzog Foundation, Inc. v. University of Bridgeport, supra, 243 Conn. 9 n. 5.
Episcopal Church v. Gauss, Superior Court, judicial district of Hartford, Complex Litigation Docket, Docket No. X 09 CV 08 4039582 (February 4, 2009, Shortall, J.).
The defendants' ninth special defense alleges that the plaintiffs' action is untimely pursuant to General Statutes § 52-576. General Statutes § 52-576 provides that an action on an implied contract must be brought within six years "after the right of action accrues." The defendants do not articulate how the plaintiffs' complaint was filed outside this time limitation. In fact, the action was timely filed because it was instituted within months after the defendants refused to relinquish the subject property to the plaintiffs.
In their objection to the motion for summary judgment, the defendants do not brief or address their ninth through thirteenth special defenses. Although the court discusses these defenses for completeness, they are deemed abandoned by the defendants.
The defendants' tenth and eleventh special defenses asserting that the Diocese and Episcopal Church "lack the authority" to bring the present action are similarly meritless. The record establishes beyond genuine factual dispute that the Episcopal Church and the Diocese are members of the same hierarchical religious organization, and in response to the motion for summary judgment, the defendants have not offered any evidence to support the proposition that these plaintiffs need "authorization by its members" to maintain this action.
In their twelfth special defense, the defendants claim that the plaintiffs' alleged implied trust is "void for uncertainty." In their opposition to the plaintiffs' motion for summary judgment, however, the defendants fail to address or articulate the legal basis for this voidness defense. Moreover, as previously discussed, the implied trust at issue is sufficiently described and expressed in the canons and constitutions of the Diocese and the Episcopal Church that "reflect the polity of the church as one in which the parish is the local manifestation of [the Episcopal Church] to be used for its ministry and mission." Trinity-St. Michael's Parish, Inc. v. Episcopal Church in the Diocese of Connecticut, supra, 224 Conn. 808, n. 13.
In their thirteenth special defense, the defendants argue that all of the defendants, with the exception of Gauss, are immune from liability under 42 U.S.C. § 14503 and General Statutes § 52-557m because they serve as volunteers for the Parish. These statutes give volunteers immunity from liability for damages caused by acts performed within the scope of their authority for a non-profit organization. Accordingly, they are inapplicable to the instant action in which the plaintiffs seek declaratory and injunctive relief.
42 U.S.C. § 14503(a) provides in relevant part: "[N]o volunteer of a nonprofit organization or governmental entity shall be liable for harm caused by an act or omission of the volunteer on behalf of the organization or entity if . . . the volunteer was acting within the scope of the volunteer's responsibility in the nonprofit organization or governmental entity at the time of the act or omission . . . [and] the harm was not caused by willful or criminal misconduct, gross negligence, reckless misconduct, or a conscious, flagrant indifference to the rights or safety of the individual harmed by the volunteer . . ."
General Statutes § 52-557m provides in relevant part: "Any person who serves as a director, officer or trustee of a nonprofit organization qualified as a tax-exempt organization under Section 501(c) of the Internal Revenue Code of 1986, or any subsequent corresponding internal revenue code of the United States, as from time to time amended, and who is not compensated for such services on a salary or prorated equivalent basis, shall be immune from civil liability for damage or injury occurring on or after October 1, 1987, resulting from any act, error or omission made in the exercise of such person's policy or decision-making responsibilities if such person was acting in good faith and within the scope of such person's official functions and duties, unless such damage or injury was caused by the reckless, wilful or wanton misconduct of such person."
The fourteenth and fifteenth special defenses also require little discussion. In their fourteenth special defense, the defendants allege that to the extent any trust exists, it has been "revoked by the settlors by unanimous vote of the present and voting members of the Society." In the fifteenth special defense, the defendants argue that the constitutions and canons that "the plaintiffs claim establish their interest in the [subject] property . . . were created by the collusive acts of Bishops and Dioceses and not by acts of [the Parish]," and therefore should not be considered binding upon the defendants. Both these defenses, however, presuppose that the Parish was never part of the Diocese and Episcopal Church, subject to the church's hierarchal structure and bound by the constitutions and canons of the same. As previously discussed, these contentions are meritless and cannot be squared with the Supreme Court's decision in Trinity-St. Michael's Parish.
V The Defendants' Counterclaim
In their counterclaim, the defendants seek a declaration that the settlors of the implied trust are the present and former members of the Bishop Seabury Church, and that the vestry elected by the Parish are the trustees of the trust. The defendants seek these declarations in order for the court to find also that the purpose of the trust is for the "propagation of the Gospel in accordance with the historic faith and order" for the benefit of those individuals "selected by the trustees." In short, the defendants want a declaration that the implied trust may be used and exercised separate and independent from the very canons and constitutions of the Diocese and the Episcopal Church on which the trust is based.
Without repeating the court's conclusions as previously discussed, the counterclaim would only raise issues requiring further consideration or adjudication if: (1) the Bishop Seabury Church had not aligned and affiliated itself with the Diocese and the Episcopal Church, thereby making itself subject to the constitutions and canons of the same; (2) the structure of the Episcopal Church was not hierarchal; and (3) the polity of the church, as established by these canons and constitutions, did not express the general church's governing interests in the spiritual and temporal matters of its parishes, and did not reflect the parish as the local manifestation of the general church's ministry and mission. See Trinity-St. Michael's Parish, Inc. v. Episcopal Church in the Diocese of Connecticut, supra, 224 Conn. 808, n. 13. Based on the court's conclusions on these issues as addressed above, however, the defendants' counterclaim does not present any issues requiring further consideration. As stated earlier, in order for the defendants to prevail on their motion for summary judgment, they must prove beyond a genuine factual dispute that the subject property was not held in trust for the plaintiffs as part of a hierarchal religious structure and in accordance with the strictures of the plaintiffs' constitutions and canons. The defendants have failed to meet this burden and their motion for summary judgment is denied.
CONCLUSION
Based on all of the foregoing, the court grants the plaintiffs' joint motion for summary judgment as to their complaint and the defendants' counterclaim. The defendants' joint cross motion for summary judgment is denied.
ORDER
As to the plaintiffs' request for declaratory relief, the court DECLARES that the real and personal property of Bishop Seabury Parish are held in trust for the Diocese of Connecticut and the Episcopal Church, and that the defendants are without any right, title, interest or authority to occupy, use or possess this real and personal property.
This real property of the Bishop Seabury Parish is the land and the improvements thereon located at 256 North Road, Groton, Connecticut, described in the complaint as being evidenced by: (1) the warranty deed to Bishop Seabury Church dated July 7, 1966, and recorded in the land records of the Town of Groton at volume 226, page 644; and (2) the quitclaim deed to Bishop Seabury Episcopal Church dated August 11, 1966, and recorded in the land records of the Town of Groton at volume 227, page 467.
This personal property of the Bishop Seabury Parish includes all the other property owned or possessed by the Bishop Seabury Parish, including the Parish records, reports, vestry minutes, books, bank accounts, trust accounts, equipment, computers, furniture, furnishings and objects used in the worship and the administration of the church's sacraments.
As to the plaintiffs' request for injunctive relief, the court ORDERS that: (1) the defendants immediately turn over to the plaintiff's possession, custody and control of the aforedescribed real and personal property of Bishop Seabury Parish; (2) the defendants are prohibited from the continued use of, and the assertion of any rights to, said real and personal property; (3) the defendants and all others acting under their control or direction shall not interfere with the plaintiffs' right to immediate possession, custody and control of said real and personal property; and (4) the defendants and all others acting under their control or direction are enjoined from wasting, selling, transferring, conveying or encumbering any of said real and personal property.
Within sixty days, the plaintiffs may move further for any orders of accounting. Any such motion shall be specific as to the type and nature of the accounting requested. The court shall retain jurisdiction for the implementation of these orders.
These orders shall be stayed for twenty-one days.