Edward Ambush v. Mt. Zion Missionary Baptist Church

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

11-1028

EDWARD AMBUSH, ET AL.

VERSUS

THE MOUNT ZION BAPTIST CHURCH, INC. THROUGH ITS BOARD
OF TRUSTEES

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APPEAL FROM THE
NINTH JUDICIAL DISTRICT COURT
PARISH OF RAPIDES, NO. 241,151
HONORABLE GEORGE CLARENCE METOYER, JR., DISTRICT JUDGE

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JIMMIE C. PETERS
JUDGE

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Court composed of Jimmie C. Peters, Marc T. Amy, and Shannon J. Gremillion,
Judges.

MOTION TO DISMISS DENIED.
AFFIRMED AND REMANDED.

Gremillion, J., concurs and assigns written reasons.

George C. Gaiennie, III
Gaiennie Law Firm, L.L.C.
Post Office Box 1408
Alexandria, LA 71309
(318) 767-1114
COUNSEL FOR DEFENDANT/APPELLANT:
Mount Zion Baptist Church, Inc. through its Board of Trustees

Bradley L. Drell
B. Gene Taylor, III
Gold, Weems, Bruser, Sues & Rundell
Post Office Box 6118
Alexandria, LA 71307
(318) 445-6471
COUNSEL FOR DEFENDANT/APPELLANT:
Mount Zion Baptist Church, Inc. through its Board of Trustees

Lindsey J. Scott
Scott and Associates, A.P.L.C.
632 Saint Ferdinand Street
Baton Rouge, LA 70802
(225) 387-2688
COUNSEL FOR PLAINTIFFS/APPELLEES:
Edward Ambush, et al.

PETERS, J.

This appeal is yet another chapter in the internal struggle for church leadership

of Mount Zion Missionary Baptist Church, Incorporated, a/k/a Mount Zion

Missionary Baptist Church, located in Alexandria, Louisiana.1 The plaintiffs in this

phase of the litigation involving the church are over 130 members of the church.

They brought suit against the church seeking various forms of relief. The church now

appeals a trial court judgment that appointed a special master to hold a church election,

and which the church contends prohibits the Board of Trustees from performing its

duties. For the following reasons, we affirm the trial court judgment and remand this

matter to the trial court for further proceedings.

DISCUSSION OF THE RECORD

The issues presented in this appeal represent only a small part of the litigation

that currently engulfs the church, and this is not the only appeal pending before this

court at this time. Contemporaneous with this opinion, this court is issuing another

opinion involving other issues related to the church’s internal governance struggle,

and reference is made to that opinion for some of the additional factual background.

See Mt. Zion Missionary Baptist Church v. Ameal Jones, Sr., 11-961 (La.App. 3 Cir.

__/__/__), ___So.3d___. The judgment in that appeal, which we affirmed, related to

Mr. Jones’ status as pastor, an election of a new set of trustees for the church, and the

particulars of who was in charge of the church business at any given point. As

pointed out in that opinion:

On March 2, 2011, the trial court executed a written judgment which
provided in part that the church’s preliminary injunction was granted and
that Mr. Jones was discharged as pastor of the church; that the purported
election of a new Board of Trustees on February 13, 2011, was nullified
and set aside; and that Mr. Jones and his agents or representatives were

1
The caption of the plaintiffs’ petition names the defendant as The Mount Zion Baptist
Church, Inc., through its Board of Trustees. In the petition itself, the plaintiffs identify the defendant
as “the Board of Trustees of Mount Zion Baptist Church, Inc.” Because the articles of incorporation
of the church (which identify the corporation as Mount Zion Baptist Church, Incorporated and not
Mount Zion Baptist Church, Inc.) provide that the corporate powers of the corporation are vested in
a Board of Trustees, we will simply refer to the defendant in this litigation as the “church.”

prohibited and enjoined from entering or occupying any of the property
of the church “as pastor pending any further action in accordance with
the Church bylaws and Louisiana law.”

Id. at __.

Apparently this latter part of the judgment led to an attempt by the church’s

trustees to limit certain members’ participation in church activities, because on March

21, 2011, the plaintiffs filed a petition against the church seeking relief on a number

of levels. Of significance to this litigation was the plaintiffs’ request for the

appointment of a special master to oversee the calling of a church meeting to elect a

new Board of Trustees, and their request for injunctive relief prohibiting the current

Board of Trustees from banning them from the church premises. This pleading was

assigned to a different division than that to which the prior litigation had been

assigned, and on the day following the filing by the plaintiffs, the judge of the new

division granted a temporary restraining order ordering the church, through its Board

of Trustees, to:

a. Refrain from preventing Petitioners’ access to the Church,

b. Refrain from conducting any business or special meetings prior to [the
trial] court’s ruling;

c. Refrain from manipulating/changing the composition of the current
board, until such time that [the trial] court has ruled on this matter.

On April 4, 2011, the trial court held a hearing on the plaintiffs’ petition and, after

completion of the evidence, granted them part of the relief they requested.

The April 18, 2011 judgment, which arose from the April 4, 2011 hearing,

provided in pertinent part that the church was prohibited from preventing the

plaintiffs’ access to the church facility, and that the trial court would appoint a special

master “to ensure that [an] Annual meeting be conducted within fifteen (15) days

from the date of the hearing.” However, even before the judgment was executed, the

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special master had been appointed2 and had already requested an extension of time in

which to hold the Annual Meeting. The trial court extended the deadline and ordered

that the Annual Meeting be held on May 1, 2011.

Before the election could be held, the church sought and obtained a suspensive

appeal of the April 18, 2011 judgment. The trial court executed the order granting the

appeal on April 26, 2011.3 In that appeal, which is the one now before us, the church

raises two assignments of error: “1) The court erred by appointing a special master

and authorizing him to hold an annual meeting. 2) The court erred by prohibiting the

directors from performing their duties.”

Plaintiffs’ Motion to Dismiss

Despite the fact that the trial court granted the church a suspensive appeal, the

Annual Meeting took place as scheduled on May 1, 2011, and a new slate of trustees

was elected.4 The plaintiffs have filed a motion to dismiss the church’s appeal based

on the alleged participation by some of the church’s trustees in the May 1, 2011

meeting. The plaintiffs argue that the church, through its Board of Trustees, has

unconditionally acquiesced in the election result by their participation.

We deny this motion to dismiss the church’s appeal. In the court’s ruling on

the plaintiffs’ supervisory writ addressing the issue of whether the church’s appeal

was suspensive or devolutive, this court also ruled that the May 1, 2011 election “was

null and void because it was conducted after the suspension of the preliminary

2
The transcript of the April 4, 2011 hearing reflects that at the end of the hearing, the trial
judge ordered counsel for the litigants to join him in chambers for the purpose of selecting the
person to be appointed as special master. No one objected to this action.
3
Inexplicably, three days later the trial court executed an order granting the church a
devolutive appeal as well. In any event, the conflict arising from the execution of the devolutive
appeal order has been resolved by this court’s unpublished ruling on a supervisory writ application
filed by the church. In that ruling, this court found that the execution of the suspensive appeal order
by the trial court had the effect of suspending any injunctive relief made available to the plaintiffs by
the April 18, 2011 judgment, and that the trial court lacked jurisdiction to execute the devolutive
appeal order. Ambush v. Mount Zion Baptist Church, Inc., 11-671 (La.App. 3 Cir. 6/29/11).
4
While this election has prompted numerous new filings, the issues raised by those filings are
not before us.
3

injunction order.” Ambush v. Mount Zion Baptist Church, Inc., 11-671 (La.App. 3 Cir.

6/29/11). Furthermore, there exists no evidence in the record before us to support the

plaintiffs’ argument that the trustees participated in the May 1, 2011 election.

Assignment of Error Number One

As stated, this court has already ruled that the May 1, 2011 election was void.

However, the church now argues that any election held under the auspices of a court-

appointed special master would be invalid. Specifically, the church points to La.R.S.

13:4165(A), which states “[p]ursuant to the inherent judicial power of the court and

upon its own motion and with the consent of all parties litigant, the court may enter an

order appointing a special master in any civil action wherein complicated legal or

factual issues are presented or wherein exceptional circumstances of the case warrant

such appointment.” (Emphasis added.) However, in a situation almost identical to the

one before us now, the second circuit approved the appointment of a special master

where the parties did not object to the appointment of the special master when the trial

court announced that it was going to appoint one. White v. Bd. of Dirs. of St.

Elizabeth Baptist Church, 42,903 (La.App. 2 Cir. 1/9/08), 974 So.2d 164, writ denied,

08-300 (La. 3/28/08), 978 So.2d 311. In White, the attorney said “[y]our honor, for

the record, I have no objection to the selection of Mr. Johnson. I just maybe have a

soft objection to the procedure but I have no objection to the selection.” Id. at 170.

Here the trial counsel did not voice even a “soft” objection to the appointment of a

special master. We construe the church’s failure to object and its apparent

participation in selecting the special master as a “tentative consent” to the

appointment of a special master. Id. at 170.

The First Amendment to the United States Constitution provides: “Congress

shall make no law respecting an establishment of religion, or prohibiting the free

exercise thereof.” A similar provision is contained in article 1, section 8 of the 1974

Louisiana Constitution, which provides: “No law shall be enacted respecting an

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establishment of religion or prohibiting the free exercise thereof.” These

constitutional provisions forbid governmental interference with religious freedom.

“Civil courts are prohibited from interfering in the ecclesiastical matters of a religious

group, that is, in matters concerning religious discipline, faith, rule, custom or law.”

LeBlanc v. Davis, 432 So.2d 239, 241 (La. 1983). However, when a court is asked to

determine whether church members complied with the procedures set out in the

church’s bylaws when it conducted an election, ecclesiastical matters are not at issue.

Id.

Given the extreme contention over the selection of the Board of Trustees and

the many entwined issues that are pending in this and the lower courts, we find that

there are exceptional circumstances within the meaning of La.R.S. 13:4165(A) that

warrant the appointment of a special master.

Assignment of Error Number Two

In its other assignment of error, the church argues that the trial court erred in

limiting the ability of the existing Board of Trustees to fulfill its obligations under the

articles of incorporation to carry on the day-to-day operation of the church.

Specifically, the church asserts that the trial court’s grant of church access to the

plaintiffs, its requirement that the trustees provide a member of the opposition with a

key to the church and its alarm code, and its requirement that no action be taken by

any party to the litigation until the special master orchestrated an election impinged on

the trustees’ authority.

A trial court’s determination as to whether to issue a preliminary injunction is

subject to the abuse of discretion standard of review. Smith v. W. Va. Oil & Gas Co.,

373 So.2d 488 (La.1979). Louisiana Code of Civil Procedure Article 3601 provides

that “[a]n injunction shall be issued in cases where irreparable injury, loss, or damage

may otherwise result to the applicant, or in other cases specifically provided by law.”

During the pendency of an action for a permanent injunction the court may issue a

5

temporary restraining order, a preliminary injunction, or both. La.Code Civ.P. art.

3601(C). A preliminary injunction merely requires a prima facie showing that the

plaintiff has a good chance to prevail on the merits. Novelaire Tech., L.L.C. v.

Harrison, 08-157 (La.App. 5 Cir. 8/19/08), 994 So.2d 57. Although the hearing on

the preliminary injunction may touch upon, or even tentatively decide, the substantive

issues that comprise the petition for the permanent injunction, those substantive issues

raised in the principal demand will be decided only after a full trial under ordinary

process. Smith, 373 So.2d 488; Novelaire Tech., L.L.C., 994 So.2d 57.

Given the circumstances facing the trial court in this unfortunate litigation, we

cannot say that the trial court abused its discretion in issuing these orders in dispute by

use of a preliminary injunction. Basically, the trial court was attempting to cause the

church to follow its own internal rules, and did so in the least intrusive way given the

inability of the church members to effect any degree of cooperation.

DISPOSITION

For the foregoing reasons, we affirm the trial court’s April 18, 2011 judgment

and remand the matter to the trial court for further proceedings. The plaintiffs’

motion to dismiss is denied. All costs of this appeal are assessed to Mount Zion

Missionary Baptist Church, Incorporated.

MOTION TO DISMISS DENIED. AFFIRMED AND REMANDED.

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STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

11-1028

EDWARD AMBUSH, ET AL.

VERSUS

THE MOUNT ZION BAPTIST CHURCH, INC. THROUGH ITS BOARD
OF TRUSTEES

GREMILLION, Judge, concurs and assigns written reasons.

The actions taken by both the trial court and the majority of this court

present a classic illustration of “making the best of a bad situation.” It is as clear to

me as it is to the majority that the appointment of a special master to oversee the

election of the Board of Directors was an entirely reasonable way of dealing with

what the majority calls “extreme contention,” and “unfortunate circumstances.”

I also agree with the majority’s decision to rely on the precedent of the

Second Circuit in White v. Board of Directors of St. Elizabeth Baptist Church, 974

So.2d 164 (La.App. 2 Cir. 1/9/08), writ denied, 08-0300 (La. 3/28/08), 978 So.2d

311 which is remarkably on point. The White rule allows for the appointment of a

special master to oversee the election of the Board of Directors of a non-profit

church even without the consent of the parties, when the dispute involves not only

the pastor’s performance and fitness to serve, but also the failure of the Board of

Directors to follow necessary formalities.

However, the fact still remains that La.R.S. 13:4165(A) only allows for a

special master upon “the consent of all parties litigant.” The court in White

attempted to get around this obvious mandate by suggesting that the absence of a

contemporaneous objection on the part of one of the litigants was somehow the

equivalent to consent. It is not.

In the case before us, I would have preferred that the majority simply cite the

White rule for the proposition that in the face of such hopeless chaos, the trial court

need not obtain consent of all the parties. Instead, the majority doubles-down on

the notion that no objection equals consent.

I am concerned that this logic could be extended beyond this situation to

other analogous situations. After all, all special masters issues are, necessarily,

“exceptional circumstances.” La.R.S. 13:4165.

2