{ "id": 9186459, "name": "THE RIGHT REVEREND, BISHOP CLIFTON W. DANIEL, 3rd, ROBERT J. POWELL, III, ALICE DILL LYNCH, Trustees of and for The Diocese of East Carolina of the Protestant Episcopal Church in the United States of America; CLIFTON W. DANIEL, 3rd, Bishop of The Diocese of East Carolina; and NICHOLAS F. THEUNER, HARRIET GRUBER, and DOROTHY RANEY, as Vestrymen of St. Andrew's Episcopal Church of Morehead City, Plaintiffs v. RICHARD H. WRAY; MARK J. SUBER; JOSEPH A. LAWRENCE; JOSEPH M. McCLURE; HENRY LEN GIBBS; LORETTA GUTHRIE; PATRICIA M. DAVIS; ELOISE BLAIR; CHRIS WADE; VICKIE R. BISHOP; GEORGE D. PHILLIPS; JOHN H. KNELSON; C. KING COLE; JOHN GLADSTONE; JOHN GRAYSON; and that Organization called by above Defendants, Interim Anglican Expression Church in Morehead City, also called St. Andrew's Anglican Church, also called St. Andrew's Episcopal Church of Morehead City, Episcopal Providence (sic) of Rwanda, Defendants", "name_abbreviation": "Daniel v. Wray", "decision_date": "2003-06-03", "docket_number": "No. COA02-768", "first_page": "161", "last_page": "175", "citations": [ { "type": "official", "cite": "158 N.C. App. 161" } ], "court": { "name_abbreviation": "N.C. Ct. App.", "id": 14983, "name": "North Carolina Court of Appeals" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "78 S.E.2d 920", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1953, "opinion_index": 0 }, { "cite": "238 N.C. 732", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8616871 ], "year": 1953, "opinion_index": 0, "case_paths": [ "/nc/238/0732-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 61", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "opinion_index": 0 }, { "cite": "115 F. Supp. 2d 607", "category": "reporters:federal", "reporter": "F. Supp. 2d", "case_ids": [ 11229334 ], "year": 2000, "opinion_index": 0, "case_paths": [ "/f-supp-2d/115/0607-01" ] }, { "cite": "145 F.2d 979", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 3669830 ], "weight": 2, "year": 1944, "pin_cites": [ { "page": "987-88" } ], "opinion_index": 0, "case_paths": [ "/f2d/145/0979-01" ] }, { "cite": "246 S.E.2d 791", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1978, "pin_cites": [ { "page": "794", "parenthetical": "citations omitted" } ], "opinion_index": 0 }, { "cite": "37 N.C. App. 585", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8554177 ], "year": 1978, "pin_cites": [ { "page": "587", "parenthetical": "citations omitted" } ], "opinion_index": 0, "case_paths": [ "/nc-app/37/0585-01" ] }, { "cite": "145 S.E.2d 873", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1966, "pin_cites": [ { "page": "875" } ], "opinion_index": 0 }, { "cite": "266 N.C. 257", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8560153 ], "year": 1966, "pin_cites": [ { "page": "261" } ], "opinion_index": 0, "case_paths": [ "/nc/266/0257-01" ] }, { "cite": "5 S.E.2d 849", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1939, "opinion_index": 0 }, { "cite": "216 N.C. 550", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8608818 ], "year": 1939, "opinion_index": 0, "case_paths": [ "/nc/216/0550-01" ] }, { "cite": "141 S.E.2d 621", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1965, "pin_cites": [ { "page": "627" } ], "opinion_index": 0 }, { "cite": "264 N.C. 296", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8572685 ], "year": 1965, "pin_cites": [ { "page": "302" } ], "opinion_index": 0, "case_paths": [ "/nc/264/0296-01" ] }, { "cite": "518 S.E.2d 558", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1999, "pin_cites": [ { "page": "560" }, { "page": "561" } ], "opinion_index": 0 }, { "cite": "134 N.C. App. 676", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11146993 ], "weight": 2, "year": 1999, "pin_cites": [ { "page": "680" }, { "page": "682" } ], "opinion_index": 0, "case_paths": [ "/nc-app/134/0676-01" ] }, { "cite": "405 S.E.2d 811", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 4, "year": 1991, "pin_cites": [ { "page": "813" }, { "page": "813", "parenthetical": "citations omitted" }, { "page": "813-14" } ], "opinion_index": 0 }, { "cite": "103 N.C. App. 469", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8521452 ], "weight": 3, "year": 1991, "pin_cites": [ { "page": "473" }, { "page": "473" }, { "page": "474" } ], "opinion_index": 0, "case_paths": [ "/nc-app/103/0469-01" ] }, { "cite": "504 S.E.2d 574", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1998, "pin_cites": [ { "page": "577" } ], "opinion_index": 0 }, { "cite": "130 N.C. App. 729", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11470258 ], "year": 1998, "pin_cites": [ { "page": "733" } ], "opinion_index": 0, "case_paths": [ "/nc-app/130/0729-01" ] }, { "cite": "513 S.E.2d 572", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1999, "pin_cites": [ { "page": "574" } ], "opinion_index": 0 }, { "cite": "132 N.C. App. 807", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11240754 ], "year": 1999, "pin_cites": [ { "page": "809" } ], "opinion_index": 0, "case_paths": [ "/nc-app/132/0807-01" ] }, { "cite": "314 S.E.2d 801", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1984, "pin_cites": [ { "page": "804" } ], "opinion_index": 0 }, { "cite": "68 N.C. App. 246", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8526962 ], "year": 1984, "pin_cites": [ { "page": "251" } ], "opinion_index": 0, "case_paths": [ "/nc-app/68/0246-01" ] }, { "cite": "139 S.E.2d 723", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1965, "pin_cites": [ { "page": "726", "parenthetical": "citation omitted" } ], "opinion_index": 0 }, { "cite": "263 N.C. 445", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8570568 ], "year": 1965, "pin_cites": [ { "page": "448-49", "parenthetical": "citation omitted" } ], "opinion_index": 0, "case_paths": [ "/nc/263/0445-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 61.1", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "year": 2001, "opinion_index": 0 }, { "cite": "506 S.E.2d 752", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1998, "pin_cites": [ { "page": "754" } ], "opinion_index": 0 }, { "cite": "131 N.C. App. 330", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11199536 ], "year": 1998, "pin_cites": [ { "page": "333" } ], "opinion_index": 0, "case_paths": [ "/nc-app/131/0330-01" ] }, { "cite": "397 S.E.2d 643", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1990, "opinion_index": 0 }, { "cite": "100 N.C. App. 622", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8527340 ], "year": 1990, "opinion_index": 0, "case_paths": [ "/nc-app/100/0622-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 1-69.1", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "year": 2001, "opinion_index": 0 } ], "analysis": { "cardinality": 1182, "char_count": 34346, "ocr_confidence": 0.751, "pagerank": { "raw": 1.2752442405586683e-07, "percentile": 0.6156681335475543 }, "sha256": "1cbee13923b7bbfbc4673b0ee7faaf539c23d1ea6d2322d132a84295de3603bd", "simhash": "1:8dcbee724a8944d5", "word_count": 5518 }, "last_updated": "2023-07-14T17:16:33.883812+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges BRYANT and ELMORE concur." ], "parties": [ "THE RIGHT REVEREND, BISHOP CLIFTON W. DANIEL, 3rd, ROBERT J. POWELL, III, ALICE DILL LYNCH, Trustees of and for The Diocese of East Carolina of the Protestant Episcopal Church in the United States of America; CLIFTON W. DANIEL, 3rd, Bishop of The Diocese of East Carolina; and NICHOLAS F. THEUNER, HARRIET GRUBER, and DOROTHY RANEY, as Vestrymen of St. Andrew\u2019s Episcopal Church of Morehead City, Plaintiffs v. RICHARD H. WRAY; MARK J. SUBER; JOSEPH A. LAWRENCE; JOSEPH M. McCLURE; HENRY LEN GIBBS; LORETTA GUTHRIE; PATRICIA M. DAVIS; ELOISE BLAIR; CHRIS WADE; VICKIE R. BISHOP; GEORGE D. PHILLIPS; JOHN H. KNELSON; C. KING COLE; JOHN GLADSTONE; JOHN GRAYSON; and that Organization called by above Defendants, Interim Anglican Expression Church in Morehead City, also called St. Andrew\u2019s Anglican Church, also called St. Andrew\u2019s Episcopal Church of Morehead City, Episcopal Providence (sic) of Rwanda, Defendants" ], "opinions": [ { "text": "HUNTER, Judge.\nDefendants appeal an order denying their motion to dismiss plaintiffs\u2019 complaint for failure to allege registration of an assumed name certificate in their original complaint, as well as failure to join a real party in interest in this action. Further, defendants appeal an order granting plaintiffs\u2019 motion for summary judgment, which resulted in plaintiffs being declared the true \u201cSt. Andrew\u2019s Episcopal Church of Morehead City\u201d and the rightful owners of all the parish\u2019s real and personal property. We affirm the trial court\u2019s decision with respect to both motions; however, we reverse the trial court\u2019s decision to assess liability against defendants in their individual capacities.\nThe Protestant Episcopal Church in the United States of America (\u201cPECUSA\u201d) is a hierarchical or connectional church composed of 109 geographical dioceses. One such diocese, The Diocese of East Carolina (\u201cDiocese\u201d), admitted a missionary congregation called St. Andrew\u2019s Episcopal Church of Morehead City (\u201cSt. Andrew\u2019s\u201d) as a parish in 1952. As a parish within the Diocese\u2019s boundaries, St. Andrew\u2019s was bound by the Constitutions and Canons of that diocese, as well as the Constitutions and Canons of PECUSA.\nUpon admission into the Diocese, St. Andrew\u2019s was deeded a parcel of land (containing three lots) in Morehead City by the Diocesan Trustees. The deed, which conveyed the land to the \u201cVestrymen and Trustees for St. Andrew[\u2019]s Episcopal Church of Morehead City, . . . and their successors in office,\u201d contained the following language pursuant to PECUSA Canon II.6.1:\nThe purpose of this conveyance is to transfer the above described property to the Vestrymen[] or Trustees of [] St. Andrew[\u2019]s ... for the construction of a church or place of worship, and for the purpose of church use, and consent and approval for such construction by the Bishop of the Diocese and the Trustees is hereby freely given.\nOver the next several years, St. Andrew\u2019s purchased and had conveyed to it by name, or to its then current vestry persons as vestry persons, nine other lots and parts of two others.\nFollowing its establishment as a parish in the Diocese, St. Andrew\u2019s acted with full parish status and complied with the Canons of PECUSA and the Diocese. However, on 28 February 2000, the vestry of St. Andrew\u2019s unanimously resolved to withdraw from PECUSA and the Diocese. Its decision was announced at a subsequent parish meeting, and a majority of the parishioners supported the withdrawal.\nThereafter, the vestry sent a letter to the Right Reverend Bishop Clifton W. Daniel, 3rd (\u201cBishop Daniel\u201d), Bishop of the Diocese, stating St. Andrew\u2019s was withdrawing from PECUSA and the Diocese to join the Interim Anglican Expression in the United States. The letter further stated that the name of the new parish would be \u201cSt. Andrew\u2019s Anglican Church of Morehead City\u201d and enclosed documents establishing parochial ownership of the St. Andrew\u2019s property and goods as deeded to the vestry. Bishop Daniel answered the letter, acknowledging the vestry members\u2019 resignations and withdrawal from the Episcopal Church, but advised them that \u201cno vestry has the authority to withdraw a parish from membership . . . .\u201d Bishop Daniel also laid claim to all property belonging to St. Andrew\u2019s because, pursuant to PECUSA Canon 1.7.4, that property was to be held in trust for the parent body upon resignation and withdrawal of the vestry and other members.\nOn 11 May 2000, the Executive Council of the Diocese passed a resolution finding that twenty-five members of the St. Andrew\u2019s congregation remained loyal to PECUSA and the Diocese. Those members had elected a new vestry and sought assistance in recovering the St. Andrew\u2019s property and goods from the departing vestry and members. The resolution further indicated that PECUSA Canon 1.7.4 governed the property issues, and Bishop Daniel was to take such action as he deemed appropriate in returning the church property and goods to the newly organized vestry and congregation of St. Andrew\u2019s.\nOn 12 May 2000, Bishop Daniel, the newly elected vestry, and the Diocese (collectively \u201cplaintiffs\u201d) filed suit against the former vestry of St. Andrew\u2019s and three other former clergymen of the parish (collectively \u201cdefendants\u201d). Before an answer was filed, plaintiffs filed an amended complaint that substituted the names of the Diocesan Trustees for that of the Diocese. On 15 September 2000, defendants filed an answer which set forth motions that plaintiffs\u2019 action be dismissed pursuant to Section 1-69.1 of the North Carolina General Statutes (\u201cSection 1-69.1\u201d) because the action was originally commenced naming the Diocese, an unincorporated association, as a plaintiff without alleging the registration of an assumed name certificate. Plaintiffs subsequently motioned to amend their amended complaint and, on 27 February 2001, plaintiffs were allowed to do so by adding allegations that stated an assumed name certificate had been filed for the Diocese with the Carteret County Register of Deeds. Defendants\u2019 motion to dismiss was denied in an order entered 6 July 2001.\nThe case was heard in July of 2001, but resulted in the trial court declaring a mistrial on 14 July 2001 when the jury failed to reach a verdict. The court further denied both parties\u2019 motions for judgment notwithstanding the verdict, as well as plaintiffs\u2019 motion for an injunction against defendants from using the name \u201cSt. Andrew\u2019s Episcopal Church.\u201d\nAs further proceedings on the action began, plaintiffs filed a motion for summary judgment on 17 December 2001. The trial court granted the motion. Thus, plaintiffs were entitled to judgment in their favor as follows: (1) Plaintiffs were deemed to be the beneficial owners of all property formerly held by St. Andrew\u2019s; (2) defendants were permanently enjoined from using the name \u201cSt. Andrew\u2019s Episcopal Church\u201d or any name confusingly similar; (3) defendants were required to make a written accounting for any funds received or appropriated from the date of defendants\u2019 withdrawal from the Diocese; and (4) deeds recorded by defendants purporting to convey the church building to another parish were declared null and void. The cost of the action was taxed to defendants jointly and severally. Defendants appeal.\nI.\nAt the onset, we address defendants\u2019 two assigned errors arguing that plaintiffs\u2019 non-compliance with procedural requirements should have resulted in the dismissal of their action.\nA. Assumed Name Certificate\nFirst, defendants argue the trial court committed reversible error in denying their motion to dismiss because plaintiffs had failed to allege registration of the Diocese in an assumed name certificate. Section 1-69.1 requires an unincorporated association \u201cbringing a suit in the name by which it is commonly known and called [to] allege the specific location of the recordation . . . .\u201d N.C. Gen. Stat. \u00a7 1-69.1 (2001). Failure to do so is fatal to a complaint. Cherokee Home Demonstration Club v. Oxendine, 100 N.C. App. 622, 397 S.E.2d 643 (1990).\nHere, plaintiffs\u2019 initial complaint violated Section 1-69.1 because it lacked the proper allegation when it named the Diocese as a party. Nevertheless, Rule 15(a) of the North Carolina Rules of Civil Procedure allows \u201c[a] party [to] amend his pleading once as a matter of course at any time before a responsive pleading is served-\u201d N.C. Gen. Stat. \u00a7 1A-1, Rule 15(a) (2001). Defendants had filed no responsive pleading prior to plaintiffs filing their amended complaint that substituted the names of the Diocesan Trustees for that of the Diocese. Such an amendment is appropriate and does not bar a party\u2019s action unless there is a statute of limitations issue. See Bob Killian Tire, Inc. v. Day Enters., Inc., 131 N.C. App. 330, 333, 506 S.E.2d 752, 754 (1998). Since plaintiffs\u2019 action was filed well within the limitations period, the trial court did not err in allowing the Diocese\u2019s name to be substituted so that it could act through its trustees. See N.C. Gen. Stat. \u00a7 61.1 (2001).\nB. Real Party in Interest\nFurther, defendants argue the court erred in denying their motion to dismiss plaintiffs\u2019 action because PECUSA was not named as a party. Rule 17 of the North Carolina Rules of Civil Procedure provides, in part, that \u201c[e]very claim shall be prosecuted in the name of the real party in interest^]\u201d N.C. Gen. Stat. \u00a7 1A-1, Rule 17(a) (2001). A real party in interest is \u201c \u2018a party who is benefited or injured by the judgment in the case. An interest which warrants making a person a party is not an interest in the action involved merely, but some interest in the subject matter of the litigation.\u2019 \u201d Parnell v. Insurance Co., 263 N.C. 445, 448-49, 139 S.E.2d 723, 726 (1965) (citation omitted).\nIn the case sub judice, plaintiffs seek to enforce PECUSA Canon 1.7.4, which essentially states that all real and personal property held by or for the benefit of St. Andrew\u2019s is held in trust for PECUSA and the Diocese. Defendants contend plaintiffs\u2019 action should have been dismissed because the canon specifically provides that the trust is for the benefit of the Diocese and PECUSA. We conclude that based upon the language of PECUSA Canon 1.7.4, PECUSA was a real party in interest because it had a legal right to enforce the claim in question. Yet, Rule 17 provides that \u201c[n]o action shall be dismissed on the ground that it is not prosecuted in the name of the real party in interest until a reasonable time has been allowed after objection for ratification of commencement of the action by, or joinder or substitution of, the real party in interest[.]\u201d N.C. Gen. Stat. \u00a7 1A-1, Rule 17(a). Thus, the trial court did not err in denying defendants\u2019 motion to dismiss; but, before ruling on plaintiffs\u2019 summary judgment motion, the court should have either granted a continuance to permit PECUSA\u2019s joinder or corrected the defect ex mero motu. See Carolina First Nat\u2019l Bank v. Douglas Gallery of Homes, 68 N.C. App. 246, 251, 314 S.E.2d 801, 804 (1984).\nNevertheless, this Court has also held that \u201cthe absence of the real party in interest . . . does not constitute a \u2018fatal defect,\u2019 [if the defendants] failed to \u2018show real prejudice in not having had the real party joined at the original trial.\u2019 \u201d Id. Defendants have not argued, nor have we found, any way in which they were prejudiced by not having PECUSA made a party to this action. Moreover, although defendants did raise this issue in their answer as an affirmative defense, they never pursued the defense in the trial court or raised it in opposition to plaintiffs\u2019 motion for summary judgment. Therefore, the denial of the motion was not prejudicial to defendants.\nII.\nDefendants also argue the trial court erred in granting summary judgment in favor of plaintiffs because there were genuine issues of material fact regarding the ownership of the St. Andrew\u2019s property.\nOn an appeal from a grant of summary judgment, this Court reviews the trial court\u2019s decision de novo. Falk Integrated Tech., Inc. v. Stack, 132 N.C. App. 807, 809, 513 S.E.2d 572, 574 (1999). Thus, when viewing the evidence in the light most favorable to the non-movant, we must determine whether the trial court properly concluded that the moving party showed, through pleadings and affidavits, that there was no genuine issue of material fact and that the moving party was entitled to judgment as a matter of law. Bruce-Terminix Co. v. Zurich Ins. Co., 130 N.C. App. 729, 733, 504 S.E.2d 574, 577 (1998).\nMoreover, \u201c[w]hile the civil courts have no jurisdiction over and no concern with purely ecclesiastical questions and controversies due to constitutional guarantees of freedom of religious profession and worship, the courts do have jurisdiction to determine property rights which are involved in, or arise from, a church controversy.\u201d Looney v. Community Bible Holiness Church, 103 N.C. App. 469, 473, 405 S.E.2d 811, 813 (1991). In determining these rights, \u201ca central question is whether the church is connectional or congregational.\u201d Fire Baptized Holiness Church v. McSwain, 134 N.C. App. 676, 680, 518 S.E.2d 558, 560 (1999). \u201cConnectional churches are governed by large bodies and individual congregations bear the same relation to the governing body as counties bear to the State. Congregational churches are independent republics, governed by the majority of its members and subject to control or supervision by no higher authority.\u201d Looney, 103 N.C. App. at 473, 405 S.E.2d at 813 (citations omitted).\nIn the instant case, it is undisputed that St. Andrew\u2019s is a connec-tional church. \u201cAs a general rule the parent body of a connectional church has the right to control the property of local affiliated churches, and, as a corollary, this right will be enforced in civil courts.\u201d Id. Plaintiffs contend the trial court properly granted summary judgment in their favor because, as a connectional church, the ownership of the St. Andrew\u2019s property is governed by the Constitutions and Canons of both PECUSA and the Diocese. Specifically, plaintiffs cite the following two canons to establish their rights to all the property:\n[PECUSA Canon 1.7.4]. All real or personal property held by or for the benefit of any Parish, Mission or Congregation is held in trust for this Church and the Diocese thereof in which such Parish, Mission or Congregation is located. The existence of this trust, however, shall in no way limit the power and authority of the Parish, Mission or Congregation otherwise existing over such property so long as the particular Parish, Mission or Congregation remains a part of, and subject to, this Church and its Constitution and Canons.\n[Diocese Canon II.6.2]. In the event of the dissolution of any Parish or Mission by the Convention, the real and personal property of the Parish or Mission shall immediately vest in the Trustees of the Diocese, in trust for the dissolved Parish or Mission.\nDefendants, however, contend that these canons do not apply because this Court clearly recognized in Looney and Fire Baptized Holiness Church that a churchy could be congregational as to property matters even though connectional in other ways.\nIn Looney, a local church joined with a denomination for purposes of fellowship. Following its joinder, the local church changed its name and wrote deeds to itself in that new name. Years later, the local church disassociated itself from the denomination, which subsequently appointed new trustees for the local church. The new trustees deeded the local church property to themselves, but members of the local church continued to occupy the property. The denomination, through the new trustees, brought suit against the local church seeking possession of the property. The trial court overruled the denomination\u2019s motions for directed verdict and for judgment notwithstanding the verdict and, following a jury verdict, declared the local church the sole owner of the property.\nOn appeal, the Looney Court considered, inter alia, whether the local church had manifested an implied assent to be governed by the denomination\u2019s General Assembly minutes which provided that the denomination controlled the local church property. The Looney Court concluded that, when viewed in the light most favorable to the local church, the evidence created \u201ca jury question as to whether as to church property the local church intended to establish a connectional relationship with the denominational church.\u201d Looney, 103 N.C. App. at 474, 405 S.E.2d at 813-14. The trial court\u2019s judgment was upheld.\nThe Looney holding was heavily relied upon by this Court in the decision rendered in Fire Baptized Holiness Church. In that case, a local church also voted to withdraw from a denomination. The denomination\u2019s trustees conveyed the local church property to themselves as trustees of a newly formed church. In an action brought by the denomination to determine ownership of the local church property, a jury found the denomination did not have rights to the property because the local church was not connectional.\nOn appeal, this Court determined there was evidence that signified the local church (1) had not recorded deeds as set out by the denomination\u2019s rules, and (2) had acquired additional property despite the denomination\u2019s clear disapproval. Evidence further indicated that the denomination had made no effort to enforce its rules at the time of those violations. Thus, as in Looney, this Court determined there was contradictory evidence regarding whether the local church manifested an implied assent to the denomination\u2019s rules governing ownership of the church property and whether the local church\u2019s failure to adhere to those rules signified its \u201cdesire for independence prior to its ultimate secession from the denomination[.]\u201d Fire Baptized Holiness Church, 134 N.C. App. at 682, 518 S.E.2d at 561. The judgment in favor of the local church was affirmed.\nDefendants argue that similar to Looney and Fire Baptized Holiness Church, this case should have been presented to a jury because a genuine issue of material fact exists as to whether defendants acted in a congregational manner with respect to property matters. Particularly, defendants contend that the evidence indicates they are the owners of the St. Andrew\u2019s real property because (1) as the former Vestry of St. Andrew\u2019s, they are the successors of the original parcel of land deeded to the parish by the Diocese, and (2) the additional real property owned by the parish was purchased without the assistance of PECUSA or the Diocese and prior to the adoption of PECUSA Canon 1.7.4. Yet, despite the similarities between these three cases, there are also significant distinctions which require this Court to reach a different result.\nIn Looney and Fire Baptized Holiness Church, we held that there was a genuine issue of material fact as to whether the local church that withdrew from the denomination had impliedly assented to the rules of that denomination with respect to property matters. Conversely, the present case involves a controversy between competing factions of the St. Andrew\u2019s congregation, each faction claiming ownership of the same property. The evidence in the record establishes that prior to defendants\u2019 withdrawal, the entire St. Andrew\u2019s congregation had adhered to the Constitutions and Canons of PECUSA and the Diocese for nearly fifty years. During that time, St. Andrew\u2019s elected delegates to participate in various conventions at which new and revised canons were adopted, and defendants did not contest the adoption of those canons thereafter. Under the language of these canons, it is clear that the St. Andrew\u2019s property was to be held in trust for the Diocese. Defendants\u2019 withdrawal from St. Andrew\u2019s essentially resulted in a dissolution of the parish whereby the property immediately vested in the Diocesan Trustees until the Executive Council of the Diocese passed a resolution recognizing those members of the original St. Andrew\u2019s congregation that remained loyal to PECUSA and the Diocese as the new St. Andrew\u2019s. Thus, the canons clearly established a form of governance impliedly assented to by defendants that precluded the seceding vestry from taking control of the St. Andrew\u2019s property.\nIII.\nDespite our conclusion that St. Andrew\u2019s is a connectional church as to property matters, defendants argue that material questions of fact still exist as to whether they have a defense that prevents the canons from encumbering the property. Specifically, defendants contend (A) PECUSA Canon 1.7.4 does not create an interest in the property for plaintiffs because it was never recorded; (B) defendants were the owners of the St. Andrew\u2019s property by adverse possession; (C) PECUSA Canon 1.7.4. violated the Statute of Frauds because it was not signed; and (D) the doctrine of estoppel or laches bars plaintiffs\u2019 action because neither PECUSA nor the Diocese attempted to enforce PECUSA Canon II.6.2 when St. Andrew\u2019s conveyed away and encumbered its property without obtaining the prior consent of the Bishop.\nA. Recordation\nWith respect to the St. Andrew\u2019s real property, PECUSA Canon 1.7.4 essentially established a deed of trust. Defendants contend that since this canon was never recorded with the Register of Deeds, it cannot effectively create an interest for plaintiffs in the property. However, North Carolina recognizes that \u201c[t]he registration of deeds is primarily for the protection of purchasers for value and creditors; an unregistered deed is good as between the parties and the fact that it is not registered does not affect the equities between the parties.\u201d Bowden v. Bowden, 264 N.C. 296, 302, 141 S.E.2d 621, 627 (1965). See also Patterson v. Bryant, 216 N.C. 550, 5 S.E.2d 849 (1939). Defendants, in their positions as former vestry and clergy of St. Andrew\u2019s, had knowledge of PECUSA Canon 1.7.4. Thus, while it is likely this unrecorded canon would have been unenforceable against innocent purchasers for value or creditors, it is enforceable against defendants.\nB. Adverse Possession\nDefendants argue the trial court committed reversible error by allowing plaintiffs\u2019 motion for summary judgment when there were material questions of fact as to whether defendants had adversely possessed the St. Andrew\u2019s real property. Defendants, however, did not forecast evidence that their possession of that property was hostile, an essential element of adverse possession. \u201cA \u2018hostile\u2019 use is simply a use of such nature and exercised under such circumstances as to manifest and give notice that the use is being made under claim of right.\u201d Dulin v. Faires, 266 N.C. 257, 261, 145 S.E.2d 873, 875 (1966). The record does not indicate that defendants\u2019 possession of any of the property was hostile prior to their decision to withdraw from PECUSA and the Diocese on 28 February 2000. Plaintiffs filed this action on 12 May 2000. Therefore, absent such hostility for the required period of time, we cannot conclude that the trial court erred in granting summary judgment in favor of plaintiffs on this issue.\nC. Statute of Frauds\nDefendants further argue PECUSA Canon 1.7.4 violated the Statute of Frauds and thus, does not govern the ownership of the St. Andrew\u2019s property because they never signed it. This Court recognizes that \u201c[a] grantee, by acceptance of a deed, becomes bound by conditions, etc., contained therein, even though he has not signed the deed. The delivery and acceptance of a deed takes covenants contained therein out of the operation of the statute of frauds.\u201d Harris & Gurganus v. Williams, 37 N.C. App. 585, 587, 246 S.E.2d 791, 794 (1978) (citations omitted). As previously stated, St. Andrew\u2019s is a connectional church that agreed to be bound by the Constitutions and Canons of PECUSA and the Diocese. In doing so, defendants, as the former vestry and clergy of St. Andrew\u2019s, \u201caccepted\u201d PECUSA Canon 1.7.4 as establishing a deed of trust in which the St. Andrew\u2019s property would be held upon their resignation and withdrawal. Therefore, this canon did create a valid trust even though it was not signed by defendants.\nD. Estoppel and Laches\nAdditionally, defendants argue plaintiffs\u2019 action is barred by either the doctrine of estoppel or laches. However, after considering our analysis of the previous arguments raised by defendants in this case, we conclude this argument to be without merit and warrants no further decision.\nIV.\nNext, defendants argue there was a genuine issue of material fact as to whether the name, \u201cSt. Andrew\u2019s Episcopal Church,\u201d had acquired a secondary meaning exclusive to plaintiffs thereby resulting in the trial court enjoining defendants from further use of that name. Defendants contend the words \u201cSt. Andrew\u2019s\u201d and \u201cEpiscopal\u201d are so common and generic that their use of these words as the name of their new church will not result in confusion of the public. We disagree.\nIn addressing plaintiffs\u2019 argument, we are persuaded by Purcell v. Summers, 145 F.2d 979 (4th Cir. 1944). In Purcell, three branches of the Methodist Church joined to become \u201cThe Methodist Church for the United Church.\u201d However, an opposing group seceded and began using the name of one of the former branches, \u201cThe Methodist Episcopal Church, South.\u201d The Methodist Church brought litigation to enjoin the use of the former branch name, which the trial court denied. On appeal, the United States Court of Appeals for the Fourth Circuit concluded:\nThe right to use the name inheres in the institution, not in its members; and, when they cease to be members of the institution, use by them of the name is misleading and, if injurious to the institution, should be enjoined. No question of religious liberty is involved. Men have the right to worship God according to the dictates of conscience; but they have no right in doing so to make use of a name which will enable them to appropriate the good will which has been built up by an organization with which they are no longer connected. . . .\nIt is said that the words \u201cMethodist\u201d and \u201cEpiscopal\u201d are generic terms and that defendants have the right to use them for that reason, but defendants are not proposing to use either of these words in a new name so different from the old that no confusion could result. . . . [T]he question is, not whether they have the right to use \u201cMethodist\u201d or \u201cEpiscopal\u201d in a new name so constructed as to avoid confusion, but whether they have the right to use the old name in a way that amounts, as we think it does, to implied misrepresentation to the damage of plaintiffs.\nId. at 987-88. See also Christian Science Bd. of Directors v. Robinson, 115 F. Supp. 2d 607 (W.D.N.C. 2000).\nThe issue addressed by the Fourth Circuit appellate court in Purcell is virtually identical to the issue currently before us. Here, plaintiffs sought to enjoin defendants from using the same name that was adopted by PECUSA and the Diocese for a parish that has been located in Carteret County for approximately fifty years. Defendants, as the seceding members of St. Andrew\u2019s, should not be allowed to confuse the public or appropriate the standing and good will of this still existing parish by establishing another church in Carteret County with the same name. Therefore, based on the rationale applied in Purcell, we conclude summary judgment was properly granted in favor of plaintiffs enjoining defendants from using the name \u201cSt. Andrew\u2019s Episcopal Church\u201d or any name confusingly similar.\nV.\nFinally, defendants argue the trial court erred in placing liability on them individually because they were acting as directors and officers of a religious society. We agree.\nSection 61-l(b) of our statutes states that \u201c[a] person serving as a trustee ... or a director or officer of a religious society shall be immune individually from civil liability for monetary damages, except to the extent covered by insurance, for any act or failure to act arising out of this service[.]\u201d N.C. Gen. Stat. \u00a7 61-l(b). See also Pressly v. Walker, 238 N.C. 732, 78 S.E.2d 920 (1953). Plaintiffs contend defendants are not immune from individual liability because they were not acting within their official duties as vestry members or clergymen of St. Andrew\u2019s when they appropriated the church\u2019s real and personal property after seceding from the Diocese and PECUSA. Whether defendants were acting as trustees or directors of the original St. Andrew\u2019s or of the church they formed after withdrawal from the Diocese and PECUSA, defendants were nonetheless still acting on behalf of a religious society. Thus, the trial court erred in finding defendants individually liable.\nIn conclusion, the trial court did not err in denying defendants\u2019 motion to dismiss plaintiffs\u2019 action for failure to allege the Diocese in an assumed name certificate. Nor did the court commit prejudicial error by not joining PECUSA as a real party in interest. Moreover, the court did not err in granting plaintiffs\u2019 summary judgment motion with respect to ownership of the St. Andrew\u2019s property and enjoining defendants from using the name \u201cSt. Andrew\u2019s Episcopal Church\u201d or any name confusingly similar. However, the trial court did err in assessing liability against defendants in their individual capacities.\nAffirmed in part, reversed in part.\nJudges BRYANT and ELMORE concur.\n. At some point during the pendency of the subsequent action between the parties, defendants changed the name of their new church from St. Andrew\u2019s Anglican Church to St. Andrew\u2019s Episcopal Church.\n. Plaintiffs had previously filed a motion for summary judgment on 2 October 2000 that was denied on 7 December 2000.\n. PECUSA Canon II.6.2 states:\nIt shall not be lawful for any Vestry, Trustees, or other body authorized by laws of any State or Territory to hold property for any Diocese, Parish or Congregation, to encumber or alienate any dedicated and consecrated Church or Chapel, or any Church or Chapel which has been used solely for Divine Service, belonging to the Parish or Congregation which they represent, without the previous consent of the Bishop, acting with the advice and consent of the Standing Committee of the Diocese.", "type": "majority", "author": "HUNTER, Judge." } ], "attorneys": [ "Wheatly, Wheatly, Nobles, Weeks & Valentine, P.A., by C. R. Wheatly, Jr. and, C. R. Wheatly, III; Charles B. Park, III; Miller, Hamilton, Snider & Odom, L.L.C., by Palmer C. Hamilton, for plaintiff-appellees.", "Taylor & Taylor, by Nelson W. Taylor, III; Beswick, Marquardt and Goines, P.A., by M. Douglas Goines; Susan H. McIntyre, for defendant-appellants." ], "corrections": "", "head_matter": "THE RIGHT REVEREND, BISHOP CLIFTON W. DANIEL, 3rd, ROBERT J. POWELL, III, ALICE DILL LYNCH, Trustees of and for The Diocese of East Carolina of the Protestant Episcopal Church in the United States of America; CLIFTON W. DANIEL, 3rd, Bishop of The Diocese of East Carolina; and NICHOLAS F. THEUNER, HARRIET GRUBER, and DOROTHY RANEY, as Vestrymen of St. Andrew\u2019s Episcopal Church of Morehead City, Plaintiffs v. RICHARD H. WRAY; MARK J. SUBER; JOSEPH A. LAWRENCE; JOSEPH M. McCLURE; HENRY LEN GIBBS; LORETTA GUTHRIE; PATRICIA M. DAVIS; ELOISE BLAIR; CHRIS WADE; VICKIE R. BISHOP; GEORGE D. PHILLIPS; JOHN H. KNELSON; C. KING COLE; JOHN GLADSTONE; JOHN GRAYSON; and that Organization called by above Defendants, Interim Anglican Expression Church in Morehead City, also called St. Andrew\u2019s Anglican Church, also called St. Andrew\u2019s Episcopal Church of Morehead City, Episcopal Providence (sic) of Rwanda, Defendants\nNo. COA02-768\n(Filed 3 June 2003)\n1. Pleadings\u2014 amendment \u2014 trustees substituted for organization\nThe trial court did not err by allowing the plaintiffs in a church dispute to amend their complaint to substitute the names of diocesan trustees for that of the diocese where defendant had not filed a responsive pleading prior to the amendment and the action was well within the statute of limitations period.\n2. Parties\u2014 real party in interest not named \u2014 no prejudice\nThe trial court did not err by denying defendants\u2019 motion to dismiss an action over disputed church property because the national Episcopal organization (PECUSA) was not named as a party. Although PECUSA was a real party in interest because it could enforce the claim under its canons, defendants did not show prejudice from PECUSA\u2019s absence.\n3. Churches and Religion\u2014 dissolving parish \u2014 property\u2014con-nectional church \u2014 vesting in diocese\nThe trial court did not err by granting summary judgment for plaintiffs in a church property dispute because the church, St. Andrew\u2019s Episcopal Church of Morehead City, is a connectional church in property matters rather than an independent congregational church. The parent body of a connectional church has the right to control the property of local affiliated churches; in this case, the withdrawal of defendants from St. Andrew\u2019s essentially resulted in the dissolution of the parish, whereby the parish property vested in the Diocesan trustees until the Diocese recognized the remaining members of the original congregation as the new St. Andrew\u2019s.\n4. Deeds\u2014 church canon creating deed of trust \u2014 unrecorded \u2014 enforceable between parties\nA canon of the Episcopal Church which essentially established a deed of trust but which was not recorded with the register of deeds was enforceable against defendants. The registration of deeds is primarily for the protection of purchasers for value and creditors; an unregistered deed is good between the parties.\n5. Adverse Possession\u2014 church property \u2014 hostile possession \u2014 evidence insufficient\nThe trial court did not err by allowing summary judgment for plaintiffs in a dispute over church property where defendant contended that there was a material issue of fact as to adverse possession, but the record did not indicate that defendants\u2019 possession of any of the property was hostile prior to their decision to withdraw from the church organization on 28 February 2000.\n6. Statute of Frauds\u2014 church property \u2014 trust created by Canon \u2014 not signed\nThe delivery and acceptance of a deed takes the covenants therein out of the statute of frauds, and a trust in church property was created by a Canon of the national Episcopal church even though it was not signed by defendants, who were attempting to withdraw St. Andrew\u2019s Episcopal Church from the national church.\n7. Churches and Religion\u2014 seceding church members \u2014 use of church name\nDefendants were properly enjoined from using the name \u201cSt. Andrew\u2019s Episcopal Church\u201d or any confusingly similar name after they withdrew from the church. Seceding members should not be allowed to confuse the public or appropriate the name and good will of an existing parish by establishing another church in the same county with the same name.\n8. Churches and Religion\u2014 individual liability \u2014 withdrawal from church \u2014 church property\nThe trial court erred by assessing liability against defendants individually in an action over disputed church property. Whether defendants were acting as trustees or directors of the original St. Andrew\u2019s or of the church they formed after their withdrawal, defendants were nonetheless acting on behalf of a religious society and were immune under N.C.G.S. \u00a7 61-l(b).\nAppeal by defendants from orders entered 6 July 2001 and 23 January 2002 by Judge John B. Lewis, Jr. and Judge John R. Jolly, Jr., respectively, in Carteret County Superior Court. Heard in the Court of Appeals 18 February 2003.\nWheatly, Wheatly, Nobles, Weeks & Valentine, P.A., by C. R. Wheatly, Jr. and, C. R. Wheatly, III; Charles B. Park, III; Miller, Hamilton, Snider & Odom, L.L.C., by Palmer C. Hamilton, for plaintiff-appellees.\nTaylor & Taylor, by Nelson W. Taylor, III; Beswick, Marquardt and Goines, P.A., by M. Douglas Goines; Susan H. McIntyre, for defendant-appellants." }, "file_name": "0161-01", "first_page_order": 191, "last_page_order": 205 }