Opinion
No. COA04-639
Filed 1 March 2005 This case not for publication
Appeal by defendants from judgment entered 8 January 2004 by Judge William Jeffrey Moore in Robeson County District Court. Heard in the Court of Appeals 26 January 2005.
Robert E. Price for plaintiffs-appellees. William L. Davis, III for defendants-appellants.
Robeson County, No. 1 CVD 3517.
Defendants appeal the trial court's order permanently enjoining them from interfering with plaintiffs and their properties, and finding that defendants have no interest in the real property of the Mt. Sinai Church. For the reasons discussed herein, we affirm.
Defendants were members of Mt. Sinai United Holy Church (Mt. Sinai). At the time the dispute in the instant case arose, defendant Horace Mitchell Downing was a trustee, defendants Stacy Powell and Dannie McNeill were deacons, and Leroy McFadden, Jr. was the pastor of the church. In either 1998 or 1999 the national church with which Mt. Sinai was affiliated split into two denominations. As a result of the division, Mt. Sinai became a member of the United Holy Church International. The local churches reunited in 2000. Under the governing manual, the local church had the option of incorporating. The decision whether to incorporate was to be made by the members of the church. A dispute arose as to whether the church properly obtained the required number of votes to proceed with incorporation. As a result of the dispute, defendants had the locks to the church changed, preventing members from gaining access to the building. Defendants also took steps to have the pastor removed. On 17 April 2001, Mt. Sinai received its articles of incorporation. Pastor McFadden was listed as the incorporator. Because of defendants' actions, the church revoked their membership by unanimous vote of the congregation.
On 6 September 2001, plaintiffs instituted this action seeking a temporary restraining order, a preliminary injunction, and a permanent injunction barring defendants from interfering with the use of church property. The trial court entered a temporary restraining order on 6 September 2001, and entered a preliminary injunction against defendants on 1 October 2001, enjoining defendants from interfering with the use of the buildings of Mt. Sinai by its pastor and members during specified times, pending resolution of this case. Judge Moore, sitting without a jury, heard this matter on 4 December 2003. The trial court entered judgment, permanently enjoining defendants from interfering with the use of the Mt. Sinai Church building, and conveying to Mt. Sinai United Holy Church of Lumberton, Inc, the church real estate. Defendants appeal.
We first note that defendants' brief is replete with violations of the Rules of Appellate Procedure. These violations include: (1) the Statement of Facts is filled with legal arguments in violation of Rule 28(b)(5); (2) inaccurate references to the Record on Appeal in violation of Rule 28(b)(6); and (3) voluminous arguments pertaining to orders from which defendants did not appeal in violation of Rules 3 and 28. These violations, in and of themselves, would merit dismissal of this appeal. However, we will address each of defendants' arguments. N.C.R. App. P. 2.
In defendants' first and second assignments of error, they contend the trial court erred in denying their motions to dismiss made prior to the trial of this case. "It is improper to appeal the denial of a motion to dismiss . . . if there has been a trial on the merits." Munie v. Tangle Oaks Corp., 109 N.C. App. 336, 340, 427 S.E.2d 149, 151 (1993). Since there was a trial on the merits in this case, the issues contained in defendants' first and second assignments of error are not properly before this Court.
In defendants' third assignment of error, they contend the trial court's findings of fact and conclusions of law were insufficient to support various judgments of the trial court.
Defendants first contend the trial court made inadequate findings of fact in its 19 August 2002 order to support its denial of defendants' motion to dismiss under Rule 12(b)(6) of the Rules of Civil Procedure. The only order which defendants appeal was the order entered on 8 January 2004. "[T]he appellate court obtains jurisdiction only over the rulings specifically designated in the notice of appeal as the ones from which the appeal is being taken." Chee v. Estes, 117 N.C. App. 450, 452, 451 S.E.2d 349, 350 (1994) (relying on N.C.R. App. P. 3(d), which requires that the notice of appeal designate the judgment or order the party is appealing). Defendants never gave notice of appeal from the 19 August 2002 order. This assignment of error is not properly before this Court and is dismissed.
Defendants next contend the findings of fact and conclusions of law made by the trial court are insufficient to support its 8 January 2004 judgment. They challenge eleven separate findings of fact and five separate conclusions of law. Defendants failed to argue their assignments of error as to findings of fact 10, 11, and 13, and conclusions of law 22 and 23. Therefore, these assignments are deemed abandoned. N.C.R. App. P. 28(b)(6).
As to the remaining assignments of error, when reviewing an appeal from a judgment entered in a non-jury trial, "our standard of review is whether competent evidence exists to support the trial court's findings of fact, and whether the findings support the conclusions of law." Resort Realty of the Outer Banks, Inc. v. Brandt, 163 N.C. App. 114, 116, 593 S.E.2d 404, 407-408, disc. review denied, 358 N.C. 236, 595 S.E.2d 154 (2004). Where the trial court's findings are supported by competent evidence, they will be deemed binding on appeal, regardless of the existence of evidence to the contrary. Id. at 116, 593 S.E.2d at 408.
Defendants first object to the trial court's finding that the court had jurisdiction over the parties and the subject matter of the suit. The relevant procedural history is as follows: in defendants' answer they moved for a dismissal on the ground that the pleadings did not allege the capacity of Southern District Convocation to sue, it not being a natural person or legal entity authorized to bring suit. As a result, plaintiffs moved for leave to amend the complaint in order to allege Southern District's capacity to sue. The trial court entered an order granting plaintiffs' motion. Defendants' did not appeal this order. As amended, the pleadings sufficiently alleged the legal identity and capacity of Southern District to bring suit. On appeal, defendants assert that despite the fact the trial court permitted Southern District to be "substituted" as a party by the amendment of the complaint, the trial court still did not obtain jurisdiction because the amended complaint was not signed and verified by an officer or agent of the corporation in violation of Rule 11(d) of the Rules of Civil Procedure.
Rule 11(d) does not require that a corporate plaintiff verify a complaint. N.C. Gen. Stat. § 1A-1, Rule 11(d) (2004). It merely specifies the manner in which a corporation may make a verification, if it so chooses. Id. Only when a statute requires verification as a condition to the maintenance of an action must a plaintiff verify the complaint, otherwise such action is optional. See Levy v. Meir, 248 N.C. 328, 329, 103 S.E.2d 288, 289 (1958). See also N.C. Gen. Stat. § 1A-1, Rule 11(b) (stating the manner in which a party may verify pleadings when required by the Rules of Civil Procedure or by statute).
Defendants further assert that Rule 65 of the Rules of Civil Procedure required that the complaint be verified since plaintiffs sought a temporary restraining order. We first note that plaintiffs' original complaint was verified, although the amended complaint was not. Rule 65(b) requires that a temporary restraining order obtained without notice to the other party be supported by an affidavit or verified complaint. N.C. Gen. Stat. § 1A-1, Rule 65(b) (2004). However, plaintiffs did not appeal the temporary restraining order, and it is not before this Court on appeal. Chee, 117 N.C. App. at 452, 451 S.E.2d at 350; N.C.R. App. P. 3(d). The order plaintiffs appealed from was entered based on testimony and evidence presented to the trial court. Whether or not the complaint was verified is irrelevant to this appeal.
There was competent evidence in the record to support the trial court's finding that it had jurisdiction over the parties and the subject matter. As to the remaining findings of fact to which defendants assign error, after careful review we find there was sufficient evidence in the record to support the trial court's findings, thus they are binding on appeal. This assignment of error is without merit. Since we have determined the trial court's findings were supported by the evidence, we now consider whether those findings support the conclusions of law to which defendants object.
Defendants first object to the trial court's conclusion that the filing of the articles of incorporation of Mt. Sinai by the Secretary of State was conclusive proof that all the conditions precedent to incorporation had been satisfied. The trial court found that the articles of incorporation were filed with the Secretary of State. Defendants did not object to this finding of fact, thus it is binding on appeal. Koufman v. Koufman, 330 N.C. 93, 97, 408 S.E.2d 729, 731 (1991). Based upon this finding the trial court concluded this was conclusive proof that the incorporators satisfied all the conditions precedent to incorporation. This conclusion was simply a recitation by the trial court of the explicit language contained in N.C. Gen. Stat. § 55A-2-03(b) (2004). The trial court did not err. This was a correct application of the law in light of the facts found.
Next, defendants assert that the following conclusions of law were not supported by the trial court's findings of fact:
20. The Defendants, acting without authority, have interfered with the proper functioning of Plaintiff Mt. Sinai United Holy Church of Lumberton, N.C., Inc.
. . . .
22. The Plaintiffs are entitled to a permanent injunction prohibiting interference with the church and its property by the Defendants.
Based on testimony given, the trial court found that defendants did various acts without the vote of the Board of Trustees or the congregation, including: (1) sending a letter to the bishop of Southern District stating that the "Board of Trust" had "withdrawn our affiliation with the United Holy Church of America" and that the pastor would be paid until 30 September 2001; and (2) defendants had the locks to the church changed three times in two weeks, causing the members to be unable to conduct Bible study. These findings support the trial court's conclusions of law.
Defendants also assert that the trial judge erred because immediately following the completion of the trial the judge merely stated that he found for plaintiffs without orally making specific findings of fact and conclusions of law to support its judgment. Rule 52(a) of the Rules of Civil Procedure, which requires that the trial court make specific findings of fact and conclusions of law, refers to when the trial court reduces its judgment to writing, not to its oral ruling immediately following the completion of the trial. N.C. Gen. Stat. § 1A-1, Rule 52(a) (2004).
As the trial court's findings of fact are supported by competent evidence, which in turn support its conclusions of law, this assignment of error is without merit.
In defendants fourth argument, they contend the trial court erred in taking judicial notice of certain evidence and in admitting certain exhibits because they lacked proper foundation or were hearsay.
Defendants first assert that the trial court improperly considered a summary of the rules of the church contained in the church's operating manual. Rule 1006 provides that "[t]he contents of voluminous writings . . . which cannot conveniently be examined in court may be presented in the form of a chart, summary, or calculation. The originals, or duplicates, shall be made available for examination. . . ." N.C. Gen. Stat. § 8C-1, Rule 1006 (2004) (emphasis added). In the instant case, from testimony given and comments made by the trial court, it appears that Mt. Sinai's operating manual was voluminous. An actual copy of the manual was available for review by the court. The trial judge also instructed the parties that it was only using the summary for the limited purpose of referencing the pertinent provisions in the manual and not for evidentiary purposes. Therefore, it was proper for the trial court to receive the summary under Rule 1006.
Next, defendants argue that the trial court erred in admitting testimony of Dr. Russell Rogers concerning plaintiffs' Exhibit 1, the standard manual and constitutional by-laws for the church. At the time of the dispute, Dr. Rodgers testified that he was a bishop and district elder who oversaw nine churches for the United Holy Church of America, Inc. Dr. Rodgers stated he was familiar with the practices and procedure manual used by Mt. Sinai due to his position within the national church with which Mt. Sinai was affiliated, as well as the fact he had previously been pastor at Mt. Sinai. Therefore, plaintiffs laid a proper foundation for Dr. Rodgers to discuss the manual.
Even assuming arguendo that plaintiffs did not lay a proper foundation for the admission of the testimony, this was a trial before a judge sitting without a jury. In such a trial, the usual rules regarding the competency of evidence are somewhat relaxed. Munchak Corp. v. Caldwell, 301 N.C. 689, 694, 273 S.E.2d 281, 285 (1981). The trial judge, who is learned in the law, is able to "eliminate from the testimony he hears that which is immaterial and incompetent, and consider only that which tends properly to prove the facts to be found.'" Id. (citations omitted). "It is therefore presumed that the court disregards the incompetent evidence[.]" Id.
Defendants further complain that plaintiff asked the trial court to consider Robert's Rules of Order without sufficient justification. While it is true that plaintiffs made such a request, this is irrelevant since the trial court declined to consider these rules.
Finally, defendants argue that the manual containing the operating rules of Mt. Sinai was not properly admitted into evidence. Although plaintiffs admit they can find no reference in the transcript where the judge explicitly admitted the manual into evidence, it appears from reading the relevant exchange that it was the trial court's intention to admit the manual into evidence. We find that a sufficient foundation was laid at trial for the admission of the manual, based upon Dr. Rodgers' testimony that he was familiar with the manual, identified it at trial, testified to the effective dates of the manual, as well as testifying to the applicability of the rules contained therein to Mt. Sinai. Again, assuming arguendo that the trial court erred in permitting Dr. Rodgers to testify regarding the manual and it was not properly admitted into evidence, there remains the presumption that when the trial judge sits as the trier of fact, the court disregards any incompetent evidence. Id. Defendants have failed to rebut this presumption. This assignment of error is without merit.
In defendants' fifth and final assignment of error they contend the trial court committed reversible error by admitting hearsay evidence on several occasions.
Defendants first assert that the trial court erred in permitting Dr. Rodgers to testify about statements defendants made to him because they constituted hearsay. Rule 801(d) of the North Carolina Rules of Evidence makes an exception to the general rule excluding hearsay evidence. N.C. Gen. Stat. § 8C-1, Rule 801(d) (2004). "A statement is admissible as an exception to the hearsay rule if it is offered against a party and it is (A) his own statement, in either his individual or a representative capacity[.]" Id. Here, Dr. Rodgers was testifying to conversations he had with two of the defendants. Therefore, the trial court did not err.
Next, defendants contend Dr. Rodgers' testimony regarding the phone conversation he had with Pastor McFadden constituted impermissible hearsay. Hearsay is "a statement, other than one made by the declarant while testifying at trial or hearing, offered in evidence to prove the truth of the matter asserted." N.C. Gen. Stat. § 8C-1, Rule 801(c) (2004). Dr. Rodgers' testimony regarding the conversation he had with Pastor McFadden and the problems the church was having with defendants was not admitted to prove the truth of the matter asserted, but to show how and why Dr. Rodgers became involved in the dispute. Thus, the trial court properly admitted this testimony.
Defendants further contend the trial court permitted testimony concerning plaintiffs' Exhibit 6 without the exhibit being admitted into evidence and where no proper foundation was laid. The trial court expressly admitted the exhibit into evidence and a proper foundation was laid for that admittance.
As to defendants' remaining contentions that the trial court admitted impermissible hearsay testimony, they are also without merit.
For the reasons discussed herein, we affirm the ruling of the trial court.
AFFIRMED.
Judges TIMMONS-GOODSON and HUDSON concur.
Report per Rule 30(e).