James Garrett v. Isiah Roswer

IN THE COURT OF APPEALS OF TENNESSEE
AT JACKSON
December 29, 2000 Session
JAMES GARRETT, ET AL. v. ISIAH ROWSER
An Appeal from the Chancery Court for Shelby County
No. 101290-1 Walter L. Evans, Chancellor
No. W1999-02369-COA-R3-CV - Filed September 5, 2001
This is a dispute among the members and officials of a church and the church pastor. The
plaintiff church members and officials filed for injunctive relief against the defendant pastor of the
church, seeking to remove him as pastor and prevent him from disposing of or eroding church assets.
The trial court enjoined the pastor defendant from disposing of, eroding or concealing church assets,
and also ordered an election. Under the court-ordered church election, the defendant was removed
as pastor of the church. Subsequently, the defendant pastor executed a trust deed encumbering
certain church properties. After the trust deed was foreclosed and the property was sold at a
foreclosure sale, the defendant pastor filed a counter-complaint in the pending suit, alleging that he
was the successful bidder at the foreclosure sale and that title of the church property should be
transferred to him. In payment of his bid, the defendant pastor tendered bonds issued by the church.
The trial court referred to a special master eight issues relating to the ownership and value of the
bonds. The special master and trial court found that the defendant pastor had not established that
he paid for the bonds. The defendant pastor appeals, arguing that the trial court erred in its finding
on the bonds and that it failed to address or take evidence on additional issues raised in his counter-
complaint. We affirm the decision of the trial court on the bonds, but remand the cause for proof
on the remaining issues.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Chancery Court is Affirmed and
Remanded.
HOLLY KIRBY LILLARD, J., delivered the opinion of the court, in which W. FRANK CRAWFORD , P.J.,
W.S. and ALAN E. HIGHERS, J., joined.
Charles Ronald Curbo, Memphis, Tennessee, for the appellant Isiah Rowser.
Patricia A. Odell, Memphis, Tennessee, for the appellees James Garrett, Bennie Steward, Thomas
R. Tabor, Pressie Wells, Aaron Bohanon, Jake Holston, Lula Manley, Alfred Chaney, George Kelly,
Providence Clark, Edwin Henderson, Eddie Pickens, S.L. Henderson, and Hugh Golden
MEMORANDUM OPINION1
This is a dispute among the members and officials of a church and the pastor of the church.
In April 1992, plaintiffs James Garret, Bennie Steward, Thomas Tabor, Pressie Wells, Aaron
Bohanon, Jake Holston, Lula Manley, Alfred Chaney, George Kelly, Providence Clark, Edwin
Henderson, Eddie Pickens, S. L. Henderson, and Hugh Golden (collectively “the plaintiffs”), as the
deacons and trustees of the Tree of Life Baptist Church, filed a complaint for injunctive relief against
the church’s pastor, Isiah Rowser (“Rowser”). The complaint alleged, inter alia, that Rowser had
disposed of real property belonging to the church without the approval of the church’s members or
officers. The Tree of Life Baptist Church (“the Church”) is an unincorporated religious organization.
On April 30, 1992, the trial court entered an order allowing Rowser to continue his duties at the
Church but enjoining him from “disposing [of],eroding or concealing [the Church’s] assets.” The
trial court also ordered that all monies be handled by the Church’s trustees. On June 26, 1992, in
response to a dispute among the parties as to whether the Church had adopted by-laws providing for
an election in disputes over a pastor’s tenure, the trial court issued a decree finding that the Church
by-laws required such a vote and ordered an election, appointing a special master to conduct the
election.
After conducting the ordered election, the Special Master filed his report on September 9,
1992, stating that the majority of the members voted to remove Rowser as pastor. On January 29,
1993, the plaintiffs filed a petition for scire facias, alleging that Rowser had violated the trial court’s
April 30, 1992 order by executing and recording a deed of trust, encumbering four parcels of land
belonging to the Church. In his answer and counter-complaint, Rowser asserted that he was not in
violation of the trial court’s prior order because the deed of trust at issue was the subject of an
agreement made prior to the trial court’s injunction. Pursuant to the alleged agreement, the deed of
trust was also to be used to secure payment of bonds previously issued by the Church to various
church members. Rowser asserted that the deed of trust was not recorded prior to the injunction only
because he had procrastinated.
After that, the case was apparently dormant for some time. In April 1996, the plaintiffs filed
a motion requesting that the deed of trust be set aside. In May 1996, Rowser filed an affidavit
stating that the deed of trust had been foreclosed and the property sold at public auction. Rowser
then amended his answer and counter-complaint to reflect that the deed of trust had been foreclosed
1
Rule 10 of the Rules of the Court of Appeals of Tennessee states:
This Court, with the concurrence of all judges participating in the case, may affirm,
reverse or modify the actions of the trial court by memorandum opinion when a
formal opinion would have no precedential value. When a case is decided by
Memorandum opinion it shall be designated “MEMORANDUM OPINION”, shall
not be published, and shall not be cited or relied on for any reason in any unrelated
case.
-2-
and the property sold. In the amended answer and counter-complaint, Rowser maintained that he
had successfully bid for the property at the foreclosure sale, tendering bonds issued by the Church
as his payment for the property. Rowser argued that the substitute trustees of the Church had
wrongfully refused to execute a deed conveying the property to him. Rowser sought an order
vesting title of the property in him. Rowser also sought a determination that he was entitled to use
the bonds in payment of his bid for the property. In late 1996, Rowser amended his answer and
counter-complaint again, alleging that the foreclosure sale was not held in accordance with statute,
should be set aside, and that a new sale should be conducted. In the alternative, Rowser alleged that,
if the sale were valid, title to the property should be transferred to him based on his successful bid
and that the church bonds should be accepted as his payment for the property.
On June 24, 1997, the trial court entered an order of reference, referring eight specific issues
to a special master. In the Order of Reference, the trial court ordered that the Special Master receive
evidence and report to the trial court as to which bonds were in Rowser’s possession, the total
amount of money received by the Church in issuing those bonds, the amount the Church received
for each individual bond and the date that the money was received, the date and amount of any
payments the Church had made on any of the bonds in Rowser’s possession, the total amount the
Church owed on each bond in Rowser’s possession, the amount the Church owed on any bonds not
in Rowser’s possession and whether the Church had made any payments on them, the number of
bonds in Rowser’s possession which were never sold or turned over to the Church, and the amount
of Rowser’s salary paid by Church bonds.
After a hearing on the issues, the Special Master found, inter alia, that Rowser failed to show
that he had purchased the bonds in his possession or that he had given the Church any money for
the bonds in his possession. The Special Master also found that none of Rowser’s salary was paid
in the form of bonds. Rowser subsequently filed exceptions to the Special Master’s report. The
plaintiffs also filed exceptions to the Special Master’s report. A hearing on the Special Master’s
report was held on December 1, 1998. After considering the pleadings, the Special Master’s report,
and the parties’ testimony at the hearing, the trial court found that Rowser had failed to establish by
“clear and convincing proof” that he had paid value for the bonds at issue. Instead, he held the bonds
in trust as pastor of the Church. The trial court also found that there was no credible proof that the
Church owed Rowser for anything other than the services he rendered as pastor. Rowser now
appeals.
On appeal, Rowser argues that the trial court erred in finding that he failed to establish that
he had paid for the bonds in his possession. He also argues that the trial court erred in not ruling in
favor of his exceptions to the Special Master’s report. Rowser contends further that the trial court
also erred in not granting an additional hearing to address other issues raised in his counter-
complaint that were not included in the issues referred to the Special Master.
The trial court’s referral of matters to a special master affects this Court’s standard of review
on appeal. Archer v. Archer, 907 S.W.2d 412, 415 (Tenn. Ct. App. 1995). A concurrent finding
of a master and a trial court is conclusive on appeal, except where it is upon an issue not proper to
-3-
be referred, where it is based on an error of law or a mixed question of fact and law, or where it is
not supported by any material evidence. Id. (citing Coates v. Thompson, 713 S.W.2d 83, 84 (Tenn.
Ct. App. 1986); Tenn. Code Ann. § 27-1-113. If there is any material evidence to support the trial
court’s concurrent factual finding, the trial court’s finding must be affirmed. Id. Based on our
review of the record, we find that there is material evidence to support the trial court’s finding that
Rowser failed to establish that he paid value for the bonds in his possession. Accordingly, we affirm
the trial court’s findings with regards to the bonds.
Rowser also argues that the trial court failed to address additional issues raised in his counter-
complaint. In his statement of the proceedings, Rowser contends that these issues were not referred
to the Special Master and that there was no evidence taken on the additional issues at the hearing on
December 1, 1998. The record on appeal does not indicate that the trial judge acted on Rowser’s
proffered statement of the evidence. Therefore, under Rule 24(f) of the Tennessee Rules of
Appellate Procedure, Rower’s statement of the evidence is “deemed to have been approved” and the
appellate court is require to consider it as approved. Under these circumstances, we find that the
trial court failed to address the remaining issues raised in Rowser’s counter-complaint, and remand
this case for a hearing on those issues.
The decision of the trial court is affirmed in part and remanded for further proceedings
consistent with this Opinion. Costs on appeal are taxed to the Appellant, Isiah Rowser, and his
surety, for which execution may issue if necessary.
___________________________________
HOLLY K. LILLARD, JUDGE
-4-