REFLECTIONS
ON TWO RECENT COURT ACTIONS
-PART II-
2nd. edition, 11 July
2nd. edition, 11 July
NOTE: 2nd. ed, 11 July
In my original posting, below, I said I did not see how lawyers could reasonably make contradictory arguments or present conditional positions in court. Since then, several correspondents have written to say such activity is very common among lawyers. It happens all the time. Using contradictory maneuvers and employing conditional and alternative arguments is standard fare in the legal profession. So, I have learned something new. DSC's contradictory assertions that the breakaway congregations own the properties and do not own the properties are par for the course in litigation. Too, DSC's conditional arguments in the Betterments case that they own the properties but if they do not own the properties they demand reimbursements on properties they own but may not own makes perfect sense in the context of this matter. As an academic trained to adhere to facts organized in a reasonable and logical fashion, I see the legal profession as another world. Not that there is anything wrong with that. No offense to you lawyers out there.
9 July:
There have been two recent court actions concerning the schism. The first, I addressed yesterday in Part I. It was the state supreme court's denial of TECSC's petition for a writ of mandamus ordering Judge Dickson to implement SCSC's August 2, 2017 decision. The justices said Dickson would resolve the issue in an "expeditious manner." This was a thinly veiled direction to Dickson to get on with it.
In my original posting, below, I said I did not see how lawyers could reasonably make contradictory arguments or present conditional positions in court. Since then, several correspondents have written to say such activity is very common among lawyers. It happens all the time. Using contradictory maneuvers and employing conditional and alternative arguments is standard fare in the legal profession. So, I have learned something new. DSC's contradictory assertions that the breakaway congregations own the properties and do not own the properties are par for the course in litigation. Too, DSC's conditional arguments in the Betterments case that they own the properties but if they do not own the properties they demand reimbursements on properties they own but may not own makes perfect sense in the context of this matter. As an academic trained to adhere to facts organized in a reasonable and logical fashion, I see the legal profession as another world. Not that there is anything wrong with that. No offense to you lawyers out there.
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9 July:
There have been two recent court actions concerning the schism. The first, I addressed yesterday in Part I. It was the state supreme court's denial of TECSC's petition for a writ of mandamus ordering Judge Dickson to implement SCSC's August 2, 2017 decision. The justices said Dickson would resolve the issue in an "expeditious manner." This was a thinly veiled direction to Dickson to get on with it.
Now, I will turn to the second recent court action. On July 2, Judge Dickson announced he would hold a hearing on the Betterments suit, at 9:30 a.m., July 25, at the Calhoun County courthouse, in St. Matthews SC.
Dickson was assigned the "remittitur" of the Aug. 2 SCSC decision in January of 2018. In the year and a half since, he has taken no action to effectuate the SCSC order. Actually, Dickson has six petitions and motions before him, three from each side. For a detailed explanation of them, see my blog post here . These are the six:
3 from DSC:
1-The Betterments suit. November 19, 2017.
2-"Motion to Establish Complex Case Designation." Dec. 27, 2017. (Relates to Betterments suit.)
3-"Motion for Clarification of Jurisdiction and for Other Relief." Mar. 23, 2018. (Asks court to settle issues DSC said were not resolved by SCSC.)
3 from TECSC/TEC:
1-Motion to dismiss Betterments suit. Dec. 15, 2017.
2-Petition for the execution of the SCSC decision and for appointment of a special master. May 8, 2018.
3-Petition for an accounting. July 11, 2018.
In all the months Dickson has had the church matter, he has held one hearing, on November 19, 2018. At that time he said he would be considering only one petition, DSC's motion for clarification of jurisdiction, of Mar. 23, 2018. He said then he would put the other five on hold for the time being.
Then, out of the blue, on March 19, 2019, Dickson set a hearing on DSC's Betterments suit, for Mar. 27. Immediately thereafter, TECSC filed its petition for a writ with the SCSC and Dickson cancelled the hearing. Now, he is resetting it for this month. He is addressing Betterments even though he said last November he would deal with clarification of jurisdiction first. Dickson has issued no decision on clarification of jurisdiction and he has given no explanation of why he is moving on to Betterments at this time.
The Hearing on the Betterments Suit
Dickson was assigned the "remittitur" of the Aug. 2 SCSC decision in January of 2018. In the year and a half since, he has taken no action to effectuate the SCSC order. Actually, Dickson has six petitions and motions before him, three from each side. For a detailed explanation of them, see my blog post here . These are the six:
3 from DSC:
1-The Betterments suit. November 19, 2017.
2-"Motion to Establish Complex Case Designation." Dec. 27, 2017. (Relates to Betterments suit.)
3-"Motion for Clarification of Jurisdiction and for Other Relief." Mar. 23, 2018. (Asks court to settle issues DSC said were not resolved by SCSC.)
3 from TECSC/TEC:
1-Motion to dismiss Betterments suit. Dec. 15, 2017.
2-Petition for the execution of the SCSC decision and for appointment of a special master. May 8, 2018.
3-Petition for an accounting. July 11, 2018.
In all the months Dickson has had the church matter, he has held one hearing, on November 19, 2018. At that time he said he would be considering only one petition, DSC's motion for clarification of jurisdiction, of Mar. 23, 2018. He said then he would put the other five on hold for the time being.
Then, out of the blue, on March 19, 2019, Dickson set a hearing on DSC's Betterments suit, for Mar. 27. Immediately thereafter, TECSC filed its petition for a writ with the SCSC and Dickson cancelled the hearing. Now, he is resetting it for this month. He is addressing Betterments even though he said last November he would deal with clarification of jurisdiction first. Dickson has issued no decision on clarification of jurisdiction and he has given no explanation of why he is moving on to Betterments at this time.
What is the Betterments Law?
The Betterments law is found in Title 27 of the South Carolina Code of Law. Find it here .
The first section, 27-27-10, says that after a final judgment in favor of the plaintiff in an action to recover property, the defendant is entitled to recover the full value of the improvements he made on the property.
This provision in the law should end the suit immediately. The fact is DSC was the plaintiff in its suit against the Episcopal Church. TEC and its diocese were the defendants. This was the suit that went all the way from the circuit court to the state supreme court. The law in 27-27-10 explicitly states only the defendant is entitled to recover the value of the improvements. Since DSC was the plaintiff and TEC/TECSC the defendant, DSC has no standing to enter a Betterments suit under the SC Code. It cannot claim reimbursements.
However, if the judge chooses to ignore this or to explain it away, we move on to section 27-27-30. It says that within 48 hours after the judgment, the defendant has to file a complaint "for so much money as the lands and tenements are so made better." DSC did not file its suit withing 48 hours after the SCSC decision of Aug. 2, 2017 nor did it list a sum of money for the improvements. The suit should be dismissed for this as well.
It seems perfectly clear to this layman that under the explicit provisions of the SC Code of Laws, DSC has no standing to enter a lawsuit under the Betterments statute. The case should be dismissed.
The Betterments Lawsuit
DSC's Betterments suit itself is interesting. It is officially entitled "Complaint (Jury Trial Demanded)," filed in the circuit court on November 19, 2017. Find it here .
The Complaint ignores inconvenient Betterments law details and freely lists DSC as the plaintiff and TECSC/TEC as defendant, as they in fact were. However, as we have seen, only the defendant can claim reimbursement. Moreover, the paper does not list a money amount to be recovered nor a time period.
A major point here is that if DSC is claiming betterments reimbursement from TEC, it is acknowledging that the Episcopal Church owns the property and has owned it all along. The ownership of the local properties is the whole point of the dispute between the two dioceses. If DSC is recognizing that TEC owns the property, this, in effect determines the outcome of all of the cases before Dickson. It renders moot DSC's motion for clarification of jurisdiction, of March 23 in which DSC in effect sought to discard the SCSC decision of Aug. 2, 2017. The Betterments suit accepts the SCSC decision that TEC owns the properties. It seems to me the DSC lawyers are arguing contradictory points, that DSC congregations own the properties and that TEC owns the properties. I will be fascinated to hear how lead lawyer Alan Runyan explains this oxymoron to Judge Dickson at the hearing this month.
However, the DSC lawyers tried to provide for themselves a too-clever-by-half escape from this dilemma. On page 4 of the Complaint of Nov. 19, they say: "The Plaintiffs [DSC and parishes] widely vary on evidence as to such agreement ("accession") and do not by this suit or otherwise admit to such agreement. To the extent, however, that a Plaintiff is determined by the Court to have so agreed, these betterment claims are made." In other words, we own the properties, but if we do not own the properties, we will change our minds and demand reimbursements on the properties we claim we own but really do not own. It is an absurd argument that may fit into the contorted avenues of litigation but really defies common sense.
My opinion on DSC's Betterments lawsuit of Nov. 19, 2017---it has no standing and is poorly conceived, constructed and argued. It is a nuisance suit I suppose pursued to delay the inevitable.
On December 15, 2017, TECSC/TEC filed with the circuit court a motion to dismiss the DSC suit on Betterments. Find it here .
I find it curious that Judge Dickson is going on to the Betterments suit before rendering a decision on DSC's motion for clarification of jurisdiction. It seems to me a judgment on the Betterments suit will essentially settle all six of the petitions before him because it will determine who owns the properties. But then, his ruling on his first matter, DSC's petition for clarification would have had the same effect.
As I see it, either way the judge goes with DSC's Betterments suit means bad news for DSC. If he grants their complaint, he, and DSC, are recognizing that TEC owns the properties and always have. If he rejects their complaint, DSC will get no reimbursement from TEC for "improvements" and would still face the SCSC Aug. 2, 2017 decision recognizing TEC ownership of the parishes. So, I do not see how DSC comes out well in this suit.
If Judge Dickson were to grant DSC's complaint for reimbursements, he would face the daunting task of deciding the time period for betterments and the amounts for each of the 29 parishes listed. This would be a mind-boggling undertaking that no one would welcome, least of all a judge with a hefty backlog.
It seems to me common sense requires Dickson to dismiss the Betterments suit. Granting it would open up a Pandora's box of problems that would require the wisdom of Solomon and ages of time to resolve. Not a happy prospect for any judge.
If all goes well, I will attend the hearing on the 25th and post a report on my blog toute de suite.
It seems to me common sense requires Dickson to dismiss the Betterments suit. Granting it would open up a Pandora's box of problems that would require the wisdom of Solomon and ages of time to resolve. Not a happy prospect for any judge.
If all goes well, I will attend the hearing on the 25th and post a report on my blog toute de suite.
