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Kirk of the Hills - Legal Documents

DateDocument as PDFas Text (html)
2006 Aug 16 Petition to the Court Combined Petition & Response
2006 ??? Plaintiff's Combined Objection and Motion to Striken/a
2006 Oct 17 Defendant's Reply to Plaintiff's Combined Objection and Motion to Striken/a
2006 Dec 18 Eastern Oklahoma Presbytery's Response Combined Petition & Response
2007 Jan 22 Kirk's Motion for Summary Judgment with Exhibits MSJ + Exhibits
2007 Feb 05 Eastern Oklahoma Presbytery's Request for Documents RFD
2007 Mar 06 EOP's Administrative Report of Kirk of the Hills AC Reports (n/a yet)

Kirk of the Hills News Links

Blog 07Mar08 07Feb01 06Dec27 06Oct27 06Oct24 06Sep18 06Sep15 06Aug31 06Aug28 06Aug17 06Apr12

NOTE: List of Churches leaving/left PCUSA, etc. blog: PCUSA Troubles

Plaintiff's (Kirk) Motion for Summary Judgment and Brief in Support

Plaintiff's Motion for Summary Judgment and Brief in Support

Table of Contents

  1. Introduction...... 4
  2. Statement of Uncontroverted Material Facts......6
  3. Standards for Summary Judgment......12
  4. Arguments and Authorities......12
    1. This Court has jurisdiction to consider Plaintiff's claims......12
      1. All Claims in this action are justiciable by this court......12
      2. No other Court or Agency has jurisdiction to resolve this dispute......13
    2. This Court does not have jurisdiction to consider PC(USA)'s claims......14
    3. Plaintiff Corporation is entitled to judgment quieting its title to its real properties......15
      1. The deeds to Tracts A, B, and C name Plaintiff Corporation as Grantee/Owner of the Properties......15
      2. Plaintiff Corporation Paid for the properties and improvements......17
      3. Defendants have no right, title or interest in the Tulsa County properties......17
      4. Plaintiff Corporation revoked any trust that may be claimed by defendants......19
    4. Plaintiff Corporation is entitled to judgment declaring its ownership of its personal property......20
    5. Plaintiff Corporation has not breached its fiduciary duty and is entitled to judgment on the counterclaim......21
    6. Plaintiff Corporation has rights under Oklahoma law......22
      1. Plaintiff Corporation is distinct from the Kirk of the Hill Church......22
      2. Plaintiff Corporation is not a member of PC(USA) or EOP......23
      3. Plaintiff Corporation is entitled to due process of law as to its properties......24
    7. Cimarron does not apply......26
  5. Conclusion......30
  6. Exhibits
    1. Exhibit A, "Articles of Incorporation"
    2. Exhibit A², "Certificate of Incorporation"
    3. Exhibit B, "Affidavit of Kyle Travis"
    4. Exhibit C, "Plat of Property"
    5. Exhibit D, "The Presbyterian Family Connections"
    6. Exhibit E, "Book Of Order 2005/2007 Excerpts"
    7. Exhibit F, "Affidavit of Rev. Ann Brizendine"
    8. Exhibit G, "Quit-Claim Deed Feb 8, 1969"
    9. Exhibit H, "General Warranty Deed March 14, 1978"
    10. Exhibit I, "Quit-Claim Deed Sept 8, 1995"
    11. Exhibit J, "Amended and Restated Certificate of Incorporation"
    12. Exhibit K, "Corporation Bylaws"
    13. Exhibit L, "Unanimous Consent to Action Taken in Lieu of a Special Meeting"
    14. Exhibit M, "Trustee Meeting Minutes, Tues, Aug 15, 2006"
    15. Exhibit N, "Companion to the Constitution"
    16. Exhibit O, "Affidavit, Glenn Elliott, Corporation Secretary"
    17. Exhibit P, "Affidavit, Lindsay H Fick, Clerk of the Session"

Plaintiff's Motion for Summary Judgment and brief in support

Plaintiff, Kirk of the Hills Corporation ("Plaintiff Corporation"), respectfully requests this Court enter summary judgment in its favor on its claims to quiet title and for declaratory judgment, and on the counterclaims of PC(USA). There is no substantial controversy as to any material fact essential to those claims and Oklahoma law mandates summary judgment for Plaintiff Corporation. The authorities which support his Motion are set forth below:

I. Introduction

Two Oklahoma corporations and a foreign unincorporated voluntary association assert adverse claims of interests in certain real and personal property located in Tulsa County, Oklahoma (the "Tulsa County Properties"). After the Defendant, (Tulsa) Eastern Oklahoma Presbytery of the Presbyterian Church U.S.A. ("EOP"), recorded and Affidavit in 2006 clouding Plaintiff's title, Plaintiff Corporation filed this proceeding to quiet its title to the Tulsa County Properties.

The uncontroverted evidence establishes that Plaintiff Corporation acquired two of its three tracts of real property many years before any purported trust provision existed and before the Defendant, The Presbyterian Church (U.S.A.) ("PC(USA)"), even came into existence.

The undisputed evidence further establishes: (i) that Plaintiff Corporation bought and paid for all of the Tulsa County Properties; (ii) that Plaintiff Corporation has always held title to the Tulsa County Properties in its name; (iii) that Plaintiff Corporation has exclusively operated, possessed, maintained and insured the Tulsa County Properties at its sole cost and expense.

Conversely, the Defendants: (i) never paid for, or assumed liability for, any of the Tulsa County Properties; (ii) never held title to, or any interest in, any of the properties; and (iii) never operated, possessed, maintained or insured any of the Tulsa County Properties.

Defendants EOP and PC(USA) seek to get something for nothing, by claiming an equitable interest in Plaintiff's property under a purported trust provision in the national constitution of a religious denomination, PC(USA). In reality, Plaintiff Corporation: (i) is not a member of the denomination or a party to its constitution; (ii) never conveyed any interest in the Tulsa County Properties to either Defendant; and (iii) revoked any purported trust.

The Authorities set forth below establish that this Court has jurisdiction to determine ownership of the properties and that Oklahoma law applies to this dispute. Applying Oklahoma law to the following uncontroverted material facts, it is clear that Plaintiff Corporation exclusively owns and holds legal and equitable title to all of the Tulsa County Properties and is entitled to summary judgment at this time: It is equally clear that Plaintiff Corporation has not breached any fiduciary duties and that PC(USA) does not have standing to prosecute that counterclaim.

II. Statement of Uncontroverted Material Facts

Parties and Relationships

1. Plaintiff Corporation, f/k/a Kirk of the Hills, United Presbyterian, Tulsa, Oklahoma, is an Oklahoma not-for-profit corporation formed on November 20, 1961, as a perpetual corporation, with the authority to acquire and dispose of real and personal property, to borrow money and to pledge property to secure repayment of such loans.

Exhibit A, Articles of Incorporation and Certificate of Incorporation dated November 20 and 21 1961, respectively, Petition filed August 16, 2006, ¶ 1; Answer of Defendant: The Presbyterian Church (USA) filed December 18, 2006, ¶ 1))

2. As an Oklahoma no-for-profit corporation, Plaintiff Corporation has continuously operated its business in accordance with the corporate formalities through members (analogous to shareholders), trustees (analogous to directors), and officers. Further, since its incorporation in 1961; it has regularly held membership and trustees' meetings; it has maintained its distinct corporate existence in good standing with the Oklahoma Secretary of State; it has maintained one or more bank accounts; and it has been the sole manager of its properties (Exhibit B, Affidavit of Kyle Travis, ¶ 4).

3. Plaintiff Corporation existing real properties (marked Tracts A, B, and C) are identified on the attached plat (Exhibit C, Plat)

4. Plaintiff Corporation is a separate and distinct entity from the unincorporated voluntary association known as Kirk of the Hills Church, which has its own board of directors, called the Session, elected by the members. The session hold regular meetings to conduct church business (Exhibit B, Affidavit of Kyle Travis, ¶ 6).)

5. The Kirk of the Hills Church, at the largest congregational meeting in the history of the church, overwhelmingly approved the decision of its Session to disaffiliate from the church, overwhelmingly approved the decision of its Session to disaffiliate from the PC(USA), and thus EOP, by a vote of 967 to 36, with 8 abstentions, on August 30, 2006. (Exhibit B, Affidavit of Kyle Travis, ¶ 7).)

6. Plaintiff Corporation never conveyed a trust interest in the Tulsa County Properties to either of the Defendants (Exhibit B, Affidavit of Kyle Travis, ¶ 6).)

7. EOP is also an Oklahoma not-for-profit corporation. (Petition filed August 16, 2006, ¶ 3; Answer of Defendant: The Presbyterian Church (USA) filed December 18, 2006, ¶ 3)

8. PC(USA) is an unincorporated voluntary association of natural persons. (Petition filed August 16, 2006, ¶ 2; Answer of Defendant: The Presbyterian Church (USA) filed December 18, 2006, ¶ 2)

9. PC(USA) was formed in 1983 (when the United Presbyterian Church in the United States ("UPCUSA") united with the Presbyterian Church in the United States ("PCUS")) (Exhibit D, Chart)

10. Plaintiff Corporation never agreed to be bound by PC(USA)'s governing document or its purported trust provision. (Exhibit B, Affidavit of Kyle Travis, ¶ 10).

11. Plaintiff Corporation is not now and never has been a member of either EOP or PC(USA). (Exhibit B, Affidavit of Kyle Travis, ¶ 11).

12. According to PC(USA)'s governing document ("Book of Order"), corporation cannot become a member of PC(USA). (Exhibit E, Book of Order, § G-5.0100).

13. Only a natural person capable of make a profession of faith may become a member of PC(USA). (Exhibit E, Book of Order, §§ G-5.0100, G-7.0103, G-7.0301).

14. Plaintiff Corporation has not had and presently does not have a contractual relationship with either Defendant (Exhibit B, Affidavit of Kyle Travis, ¶ 14).

15. Neither Defendant is an officer, trustee or member of Plaintiff Corporation. (Exhibit B, Affidavit of Kyle Travis, ¶ 14).

16. The provisions regarding corporations in the PC(USA) Book of Order, do not control who may be elected trustees of Plaintiff Corporation and do not prohibit a corporation from amending its governing document (Exhibit E, Book of Order, § G-7.0400). Such corporations are not referenced as governing bodies in the church polity (Exhibit E, Book of Order, § G-9.0101).

17. EOP is the real party in interest for PC(USA) with respect to the purported trust (Exhibit F, Affidavit of Rev. Ann Brizendine, ¶¶ 7,8.)

Tulsa County Properties

18. On February 8, 1969, Plaintiff Corporation, a/k/a Kirk of the Hills United Presbyterian Church in the U.S.A., a corporation, purchased from EOP, a/k/a Presbytery of Eastern Oklahoma of the United Presbyterian Church in the U.S.A., c corporation, "all [EOP's] right, title, interest, and estate, both at law and in equity, of, in and to" Tract A by a Quit-Claim Deed (Exhibit B, Exhibit C, Exhibit G

19. In the Quit-Claim Deed, EOP did not reserve any legal, equitable, or other interest or claim in Tract A (Exhibit G)

20. On March 14, 1978, Plaintiff Corporation, a/k/a Kirk of the Hills United Presbyterian, an Oklahoma Corporation, obtained legal and equitable title to Tract B by a General Warranty Deed from another corporation, N.M.F., Inc. Exhibit C, Exhibit H

21. The grantors of Tract B conveyed to Plaintiff Corporation "all" of Tract B, "free, clear, and discharged and unencumbered of and from all former and other grants, titles, charges, estates, judgments, taxes, assessments and encumbrances, of whatsoever nature and kind" Exhibit H

22. On the dates Plaintiff Corporation purchased Tracts A and B, PC(USA) did not exist and there was no trust provision in the constitution of the denomination to which the Kirk of the Hills Church belonged. See Exhibit C

23. On September 5, 1985, Plaintiff Corporation, a/k/a Kirk of the Hills United Presbyterian, purchased legal and equitable title to Tract C from certain individuals by a Quit-Claim Deed executed by James B. Eagleton and Grace B. Eagleton, husband and wife, and Travis Freeman and Lucia Freeman, husband and wife. Exhibit CExhibit I

24. Plaintiff Corporation purchased the Tulsa County Properties and has held title thereto continuously since each asset was acquired. (Exhibit B, Affidavit of Kyle Travis, ¶ 20).)

25. Plaintiff Corporation paid for Tracts A, B and C; Plaintiff Corporation constructed improvements on Tracts A, B, and C at its own expense; and Plaintiff Corporation has at all times furnished, maintained, and insured Tracts A, B and C at its own expense. (Exhibit B, Affidavit of Kyle Travis, ¶ 21, C).)

26. Plaintiff Corporation owns all right, title and interest in and to all improvements attached to and made a part of Tracts A, B and C. (Exhibit B, Affidavit of Kyle Travis, ¶ 22, C).)

27. There is no written instrument signed by Plaintiff Corporation conveying a legal or equitable (trust) interest to PC(USA) or EOP with respect to any of the Tulsa County Properties. (Exhibit B, Affidavit of Kyle Travis, ¶ 27).)

28. Neither Defendant has ever claimed or asserted any control over any of Plaintiff Corporation's personal property until the 2006 assertion of the trust. (Exhibit B, Affidavit of Kyle Travis, ¶ 23).)

29. Plaintiff Corporation has the authority to buy, sell, manage, improve, assign, transfer, convey, take, acquire, dispose of, encumber, mortgage, pledge, lease, let, sublet, develop, construct, and otherwise use real estate and/or real property; and to buy, sell, manage, improve, develop, assign, transfer, convey, lease, pledge, dispose of, mortgage or otherwise encumber personal property. Exhibit J, Amended and Restated Certificate of Incorporation for Kirk of the Hills Corporation, Article C(6)(c) and (d)).

30. Plaintiff Corporation has the authority to make and alter its Certificate of Incorporation by Bylaws without notice to, or the approval of, EOP or PC(USA) Exhibit J, Amended and Restated Certificate of Incorporation for Kirk of the Hills Corporation, Article C(6)(a) and Exhibit K, Corporation Bylaws of Kirk of the Hills Corporation date June 28, 2006, Article 19

31. Plaintiff Corporation's Certificate of Incorporation and Bylaws did not create a trust in favor of PC(USA) or EOP. Exhibit J, Exhibit K

32. Even if a trust had been created in favor of either or both of the Defendants (which Plaintiff Corporation denies), Plaintiff Corporation revoked such trust on July 4, 2006. (Exhibit L, Unanimous Consent to Action Taken in Lieu of a Special Meeting of the Board of Trustees of Kirk of the Hills Corporation dated July 4, 20006 Exhibit M, Affidavit of Glenn Elliott Secretary of the Corporation (revoking trust), Document No. 2006094091, filed in Tulsa County land records on Aug 16, 2006)

33. On March 6, 2006, Reverend Ann Brizendine filed and affidavit ("the Affidavit"), Document No. 2006025070, in the Tulsa County land records. in the Affidavit, Rev. Brizendine asserts (among other things) that PC(USA)'s governing document has created a trust in favor of PC(USA) over Tract A, Tract B, and Tract C; and that the immediate beneficiary of PC(USA)'s purported trust is EOP. Exhibit C,Exhibit F

34. PC(USA)'s Book of Order disclaims all civil authority, including jurisdiction or power over a statutorily-created Oklahoma not-for-profit corporation such as Plaintiff Corporation. (Exhibit E, Book of Order, § G-9.0102).

35. Plaintiff Corporation never executed a waiver of its rights to the civil court system, to due process of law, or to the protections of the federal and Oklahoma constitutions. (Exhibit B, Affidavit of Kyle Travis, ¶ 29).)

36. Plaintiff Corporation's amended and restated Certificate of Incorporation and Bylaws, dated June 28, 2006, make no mention of, or reference to, PC(USA) or EOP (Exhibit J, Exhibit K

37. On August 15, 2006, Plaintiff Corporation renounced any and all authority of PC(USA) and EOP over Plaintiff Corporation, to the extend any affiliation or association between the two may be alleged to have existed. Exhibit M, Board of Trustees' Meeting Minutes (redacted), dated, Aug 15, 2006"¹

¹ Over the past 40 years, the Kirk of the Hills Church has been affiliated both with The Presbyterian Church (U.S.A.) and with one of its tow predecessor associations, the United Presbyterian Church in the United States. The local congregation's affiliations with these unincorporated voluntary associations have not altered the Corporation's right tow own and posses its real and personal properties.

III. Standards for Summary Judgment

Pursuant to Rule 13 of Rules for the District Courts of Oklahoma, Plaintiff Corporation is Entitled to summary judgment if no substantial controversy exists as to any material fact, and Plaintiff Corporation can demonstrate that it is entitled to judgment as a matter of law. Flanders v Crain, 1984 OK 88, 693 P.2d 602, 605 Once Plaintiff Corporation has made a prima facie showing that it is entitled to judgment, the Defendants cannot defeat a motion for summary judgment, and require a trail, on the bare contention that an issue of fact exists. The Defendants must show that evidence is available which could justify a trial of the issue. Stevens v Yamaha Motor Co., ltd., 1981 OK 42, 627 P 2d 439. Also, the Court must make its determination on the record before it, not on one potentially possible. Frey v Independent Fire and Cas. Co., 1985 OK 25, 698 P 2d 17.

IV. Arguments and Authorities

A.This Court has jurisdiction to consider Plaintiff's claims

1. All Claims in this action are justiciable by this court

This is a property dispute regarding Tulsa County real and personal property. The deeds an other evidence needed to resolve this dispute are attached to this Motion. The parties are before the Court. Plaintiff Corporation is an Oklahoma corporation; EOP is an Oklahoma corporation; and PC(USA) is an unincorporated voluntary association claiming an interest in Oklahoma real and personal property. Fact 1, 7, 8. (Exhibit A)

More specifically, under 12 O.S. § 1141, the Court has the authority, jurisdiction, and power to quite title to real property in a particular party. Further, this Court has the authority and power, pursuant to12 O.S. § 1651, to adjudicate competing claims of parties in real property and personal property.

Issues relating to Oklahoma property are governed by Oklahoma property law 60 O.S. § 21. Correspondingly, owners of Oklahoma real property are entitled to have their claims heard by a court of law applying the protections of Oklahoma law in respect to their property rights.

2. No other Court or Agency has jurisdiction to resolve this dispute

EOP postulated in its Motion for Stay that EOP's own internally appointed committee had the exclusive authority to resolve this title dispute. Under this scheme, the EOP argues that the District Court would function merely as a rubber stamp of the EOP's [biased] determination of ownership. Defendant EOP's Motion for Stay of Action and Brief in Support file September 14, 2006 p.13

There are at least seven ground which refute EOP's contention:

  1. First and foremost, Plaintiff Corporation is not a member of PC(USA), and Defendants' internal ecclesiastical procedures do not apply to Plaintiff.
  2. Equally as important, Plaintiff Corporation is not a party to a contract with PC(USA) or EOP regarding the Tulsa County Properties. If there were such a contract, Oklahoma law would be incorporated into that contract. Further, this Oklahoma court would have jurisdiction to determine any controversy arising out of that contract.
  3. The EOP committee/judicatory is incapable of quieting title or otherwise effectively declaring superiority of title. PC(USA)'s constitution, the Book of Order, acknowledges that the "bodies of the church are distinct from the government of the state and have no civil jurisdiction or power to impose civil penalties." Fact 33. EOP agrees that an "ecclesiastical organization, has no authority to legally and conclusively quiet title to property." Defendant's Reply to Plaintiff's Combined Objection and Motion to Strike file October 17, 2006 p.3, n. 1.
  4. The Oklahoma laws cited in the preceding section of this Motion establish that Oklahoma property disputes are governed by Oklahoma law and decided by Oklahoma courts; and
  5. EOP's committee/judicatory does not afford Plaintiff Corporation constitutional due process, either substantively or procedurally. The EOP itself, the so-called tribunal, advocates for its ownership of the property in controversy.
  6. Defendants here sought the protection of state law by recording and Affidavit in the Tulsa County land records.
  7. PC(USA) asserts a counterclaim for breach of fiduciary duty by Plaintiff Corporation. See PC(USA) Counterclaim, ¶¶ 22-25 and Prayer, ¶ 3. In the event summary judgment is not granted, Plaintiff Corporation is entitled to a jury trial, not a review by an internal denomination committee, on this claim. See Oklahoma Constitution, art II, § 19.

B. This Court does not have jurisdiction to consider PC(USA)'s claims

PC(USA) is not the real party in interest in respect to its counterclaims filed herein and therefore does not have standing to prosecute its counterclaims. "Every action shall be prosecuted in the name of the real party in interest." 12 O.S. § 2017(A). The lack of standing "is jurisdictional and my be correctly raised at any stage of the judicial process by any party or by the court on its own motion." In the Mater of the Estate of Doan, 1986 OK 15.

The statutory requirement that actions be brought in the name of the real party in interest is satisfied where there is competent evidence to show that plaintiff has the right to receive and control the fruits and benefits of the litigation. Schoenfeld v. Blair, 1961 OK 258, ∥¶ 7-8, 366 P.2d 414. The real party in interest is the party legally entitled to the proceeds of a claim or the party that has the right to receive and control the fruits and benefits of the litigation; he is a party who by substantive law has the right of action. Mainord v. Sharp, 1977 OK CIV APP 29, ¶ 6, 569 P.2d 546

In her recorded Affidavit, EOP Board of Trustees' Chair Rev. Brizendine claims that EOP is the beneficiary of the purported trust and only EOP has the authority ot sell, dispose of and control all the real and personal property owned by Plaintiff Corporation. As PC(USA) is not the grantor, the trustee or the beneficiary of the purported trust, PC(USA) is not a real party in interest and has no standing to bring any of the counterclaims filed herein.² The counterclaims of PC(USA) must therefore be dismissed.

² Although EOP could have filed such a counterclaim, it chose not to do so.

C.Plaintiff Corporation is entitled to judgment quieting its title to its real properties

The uncontroverted evidence establishes that Plaintiff Corporation is entitled to judgment quieting its title to the Tulsa County Properties. To prevail on its quiet title claim, Plaintiff Corporation must prove that it is the owner of either the legal or equitable title. Booth v. McKnight, 2003 OK 49, ∥ 26 n. 64; Tenneco Oil Co. v. El Paso Natural Gas Co., 1984 OK 52, 687 P.2d 1049, 1055. In this instance, Plaintiff Corporation holds both.

  1. The Deed to Tracts A, B and C Name Plaintiff Corporation as Grantee/Owner of the Properties.

    2. Corporation, such as Plaintiff Corporation, have the right to "[p]urchase, receive, take by grant, gift, devise, bequest or otherwise, lease, or otherwise acquire, own, hold, improve, employ, use and otherwise deal in and with real or personal property." 18 O.S. §1016. Plaintiff Corporation purchased Tracts A, B and C and the deeds to these Tracts Identify Plaintiff Corporation as the Grantee. (Exhibit C, Exhibit G, Exhibit H, Exhibit I Exhibit K)

    EOP and PC(USA) do not the right to control Plaintiff Corporation's property. Oklahoma property is governed by Oklahoma law. 60 O.S. § 21. Every estate in land which is granted, conveyed, or demised by deed is deemed an estate in fee simple and of inheritance, unless limited by express words 16 O.S. § 29. A fee simple estate is one which the owner has full and complete legal and equitable title to the entire property. King v. Courtney. 122 P2d 1014,1015-16,(Okla 1941).

    There is no ambiguity in the deeds to Tracts A, B, and C (the "Deeds") and the terms thereof are not limited in any manner. Facts 17-27 (Exhibit C, Exhibit G, Exhibit H, Exhibit I Exhibit K) The purpose of construing an instrument is to divine from its text the intent of the parties. Unless there is and ambiguity, that intent must be gathered solely from the four corners of the instrument. Cleary Petroleum Corp. v. Harrison, 1980 OK 188, 621 P.2d 528, 532.

    In 1969, Plaintiff Corporation received title to Tract A from EOP. EOP conveyed Tract to Plaintiff Corporation by means of a Quit Claim Deed, which conveyed "all [EOP's] right, tot;e. interest amd estate, bot at law and in equity, of, in and to," Tract A. There were no limiting words and no reservation by EOP of a trust or other interest in Tract A.

    In 1978, Plaintiff Corporation purchased Tract B and took title by means of a General Warranty Deed. There were no limiting words and no reservation by grantors of a trust or other interest in Tract B.

    As stated, Plaintiff Corporation does not belong to a church on a denomination. As PC(USA) was not formed until 1983, it is clear that Tracts A and B were both acquired before PC(USA) existed. Additionally, since PC(USA)'s predecessor, UPCUSA, did not have a trust provision in its constitution until 1981, there was no trust provision in the constitution of the denomination to which the Kirk of the Hills Church belonged, at the time Plaintiff Corporation acquired its title to Tracts A and B.

    in 1985, Plaintiff Corporation purchased Tract C and took title by a Quit Claim Deed. There where no limiting words in the Deed and the deed does not reflect that Plaintiff Corporation holds the title in trust for any third party.

  2. Plaintiff Corporation Paid for the Properties and Improvements.

    3. Plaintiff Corporation paid for the Tulsa County Properties and then paid to construct the improvements on Tracts A, B and C. Once the improvements were completed, Plaintiff Corporation paid for the upkeep, operation, and insurance of those improvements and the tracts.

    The Trustees of Plaintiff Corporation, who are elected by the members who paid the bills all of those yers on the properties, approved the filing of his quiet title proceeding.

  3. Defendants Have No Right, Title, or Interest in the Tulsa County Properties.

    4. The unambiguous language in the Deeds are dispositive of Plaintiff Corporation's quiet title claim. There are no instruments from Plaintiff Corporation which would detract from Plaintiff Corporation's fee simple title to the real properties in dispute.

    There is no instrument conveying any interest in the Tulsa County Properties to either Defendant. Defendants assert a claim of a trust interest in Plaintiff Corporation's property under Section G-8.0201 in the denomination's Book of Order, despite the fact that Plaintiff Corporation is not a member of the denomination and is not governed by its internal rules and regulations.

    The evidence confirms that Plaintiff Corporation did not create a trust in favor of either Defendant with respect to any of the Plaintiff Corporation's real or personal property. The required elements to create a valid trust have not been meet.

    An express trust as to real property must be created by a written instrument subscribed by the trustor or its agent authorized in writing. 60 O.S. § 175.6. Such instrument generally must point out directly and expressly the property, persons, and purpose of the trust, and constitute an intentional act by the settlor creating the trust. See, 60 O.S. § 175.6 Here, there is no signed written trust instrument

    Oklahoma law also requires the present intent by a competent settlor than a competent trustee hold and manage an ascertainable trust res for the benefit of sufficiently certain beneficiaries, which is accompanied by an act which constitutes a present, complete disposition of the trust property. See, In re Estate of Richardson, 2002 OK CIV APP 69, 50 P.3d 584 "Before an express trust can be created, there must be some act by the settlor expressing an intent to create a trust and to designate a trustee." See, Matter of Burns' Estate, 1978 OK CIV APP 42, ∥ 9, 585 P.2d 1126. It is undisputed that Plaintiff Corporation did not take such action or express the intent to create a trust.

    There are additional reasons why the purported trust was never created:

    1. Neither the Book of Order nor any predecessor denomination constitution contained a trust provision at the time Tract A, Tract B and various personal properties were conveyed to or received by the Kirk. Therefore, the Book of Order (as adopted in 1983) cannot alter the Kirk's vested rights in these properties. See, Eureka Reserve Life Ins. v. Glazner, 1925 OK 9985, 242 P.181, 185.
    2. A purported beneficiary of a trust cannot create a trust in favor of itself. In other words, neither EOP nor PC(USA) has the authority to create a trust over another entity's real or personal property. See Eureka Reserve Life Ins. v. Glazner, 1925 OK 985, 242 P.181, 185. A purported beneficiary of a trust cannot create a trust in favor of itself. In other words, neither EOP nor PC(USA) has the authority to create a trust over another entity's real or personal property. See, California-Nevada Annual Conference v. St. Luke's United Methodist Church, 17 Cal Rptr.3d 442, 454 (Cal Ct. App 2004) ("We know of no principle of trust law stating that a trust can be created by the declaration of a nonowner that the owner holds the property as trustee for the nonowner")
    3. A provision in the governing document of a voluntary association purporting to divest a corporation of title to its property and vest it in itself is a forbidden power under Oklahoma law. in Robertson v. Knighten, 1943 OK 261, 139 P.2d 601, the Supreme Court of Oklahoma held that the general assembly of an unincorporated association could not be authorized by its constitution with governmental power which would enable it to dissolve a local assembly and to divest the latter of tis title to the property law. Id at 603-604. The Court found that "[t]o hold that the General Assembly can by a decree divest the title to property and vest it in itself, is giving to it a power which is forbidden to be exercised by Congress, or by the Legislature of any state. "Bills confiscating the property of citizens, or of associations, without judicial process, are forbidden by the Constitution; and no person, corporation or association authorized to acquire and hold property, can be divested of it by the fiat of any organization, nor in any way without its consent, or due process of law"Id at 604. (Emphasis added)

    Further, whether a valid trust was created by the insertion of the purported trust provision PC(USA)'s governing document is immaterial to this Court's summary judgment determination, because PC(USA)'s governing document does not apply to the Corporation, which is not and has never been a member of PC(USA). At most the purported trust provision is a failed attempt by PC(USA) to create an express trust.

  4. Plaintiff Corporation Revoked any Trust that May be Claimed by Defendants.

    5. Even if the clause in theBook of Order could be construed as creating a trust in favor of either Defendant, said trust was revocable at the election of Plaintiff Corporation. See, Exhibit L Under Oklahoma law, in the absence of specific language to the contrary, a trust is revocable at the election of the settlor. "Every trust shall be revocable by the trustor, unless expressly made irrevocable by the terms of the instrument creating the same" 60 O.S. § 175 41; and see, St. Luke's United Methodist Church, at 454 (Cal Ct. App 2004).

    Defendants have cited no language from the Book of Order which makes the purported trust irrevocable. "When the Book of Order is silent, the silence is purposeful, when something is not mentioned in the Book of Order, the omission is deliberate and intentional" Frank A. Beattie, "Companion to the Constitution of the Presbyterian Church(U.S.A.) Polity for the Local Church", at p6 (1999) Exhibit N

    The purported trust is revocable and it is uncontroverted that the trust was revoked by Plaintiff Corporation on July 4, 2006.See Exhibit O Affidavit of Glenn Elliott, filed in the land records of the Tulsa County Clerk on August 16, 2006; and Exhibit P Affidavit of Lindsey Fick, filed in the land records of the Tulsa County Clerk on August 16, 2006. The settlor may revoke a trust without notice when the settlor was both settlor and trustee and the trust was revocable Paul v. Davidson, 2005 OK CIV APP 85, 123 P.3d 808

D. Plaintiff Corporation is entitled to judgment declaring its ownership of its personal property

Plaintiff Corporation's personal property consists primarily of furnishings, equipment, statues, vans, bank account(s) and various intangible assets. These assets are titled exclusively in the name of Plaintiff Corporation. They were acquired by, and are managed and insured by, Plaintiff Corporation. Defendants made no contribution to these assets and have never exercised any control over them, but nevertheless claim the beneficial ownership thereof.

For Plaintiff Corporation to receive declaratory relief; (1) there must exist a justiciable controversy (i.e. a controversy in which a claim of right is asserted against one has an interest in contesting it); (2) the controversy must be between parties whose interest are adverse; (3)the party seeking declaratory relief must have a legally protectable interest in the controversy; and (4) the issue must be ripe for judicial determination Chrysler Corp. v. Clark, 1987 OK 332, 737 P 2d 109,111.

Defendants' purported interest in these assets arises from the so-called trust provision in the (USA)'s Book of Order. Plaintiff Corporation is entitled to summary judgment on its claim for declaratory judgment with respect to the personal property for the same reason which refute defendants' trust claim as to Plaintiff Corporation's real property.

E. Plaintiff Corporation has not breached its fiduciary duty and is entitled to judgment on the counterclaim

PC(USA) cannot prevail on its counterclaim, even if it had standing. PC(USA) must prove an existing fiduciary relationship between the parties, breach, proximate cause, and damages. It cannot do so.

There is no fiduciary relationship between PC(USA) and Plaintiff Corporation. As established above, Plaintiff Corporation is not a member of PC(USA). Additionally, PC(USA) is not a member, trustee or officer of Plaintiff Corporation. Further, PC(USA) is not a part to a contract with Plaintiff Corporation. Finally, PC(USA) is not the beneficiary of the purported trust.

While the Trustees of Plaintiff Corporation may owe fiduciary duties to its members, this certainly does not extend to third parties like PC(USA). A coporation's directors owe a fiduciary duty to the corporation and its shareholders. Wilson v. Harlow, 1993 OK 98, 860 P.2d 793,798, cert. denied, 510 U.S. 1117, 114 S.Ct 1067, 127 L Ed 2d 386 (1994).

Plaintiff Corporation amended its Certificate of Incorporation and Bylaws, in accordance with its authority under its governing documents and Oklahoma law. Plaintiff Corporation never contracted away its authority to amend its governing documents. PC(USA) never sought or obtained control over Plaintiff Corporation, such that PC(USA) could prohibit Plaintiff Corporation from amending its governing documents.

Even if a fiduciary relationship existed, there was no breach. Plaintiff Corporation acted at all time in accordance with the expressed decisions and directions of its members with respect to Tulsa County Properties. Ninety-six (96%) of the members of the Kirk of the Hills Church (who are also members of Plaintiff Corporation), at a congregational meeting held on August 30, 2006, voted to disaffiliate from PC(USA) and EOP.

In view of the clear direction from its members, and the recordation of the Affidavit by EOP in the Tulsa County land records, Plaintiff Corporation has the obligation to take action to remove the claims of ownership assert by PC(USA) and EOP. To act otherwise would be a breach of the fiduciary duties of the Plaintiff Corporation to its members.

Also, as noted above, Plaintiff Corporation acted at all times in accordance with its rights under Oklahoma law, which is incorporated into any agreement between Plaintiff Corporation and PC(USA). As such, there was no breach of any alleged fiduciary relationship.

Even if a fiduciary relationship existed, and there was a breach, PC(USA) has incurred no damages. No damages are sought in the Counterclaim and no grounds exists for injunctive relief in anticipation of alleged injury.

F. Plaintiff Corporation has rights under Oklahoma law

1. Plaintiff Corporation is distinct from the Kirk of the Hill Church

Plaintiff Corporation is entitled to the protections of the Oklahoma law cite above. It is a citizen of Oklahoma, a creature of statue, existing by grant from the State of Oklahoma through the Secretary of State. Defendants EOP and PC(USA) prefer to treat Plaintiff Corporation as if it were a natural person who had voluntarily joined the denomination and submitted to its authority and discipline. This is not the case.

The Oklahoma General Corporations Act ("CORPORATION ACT") governs Plaintiff Corporation. As a not-for-profit, non-stock corporation, it has the right to conduct business, to sue, and to hold and mortgage property. 18 O.S. § § 1015, 1016. The CORPORATION ACT recognizes the right of Plaintiff Corporation's board of trustees to transact the corporation's business and to manage its assets, including the Tulsa County Properties.

Defendants' disregard of Plaintiff's corporate identity does not make it any less a corporation. Plaintiff Corporation cannot be dissolved by outsiders such as EOP or PC(USA). It can be dissolved only in a manner prescribed by statue. 18 O.S. § 1001, et eq, Sutter v. Sutter Ranching Corp. 2000 OK 84, ∥ 12, 14 P.3d 58. Only the board of trustees of Plaintiff Corporation, in its discretion, may adopt a resolution to dissolve the Corporation. 18 O.S. §§ 1096, 1097, Sutter, 2000 OK 84 at ¶ 13

Furthermore, the CORPORATION ACT does not provide grounds for the judicial dissolution of a corporation, except in limited circumstances which are not implicated here. 18 O.S. §§ 564.3 and 1104. Therefore, under Oklahoma law, neither the Court, nor a religious association such as PC(USA), nor another Oklahoma corporation such as EOP, nor any ecclesiastical body, has the authority to dissolve Plaintiff Corporation.

2. Plaintiff Corporation is not a member of PC(USA) or EOP

Plaintiff Corporation is neither a member of PC(USA) nor a party to a contract with PC(USA) or EOP in regard to the Tulsa County Properties. Fact 4, 10-14 (Exhibit A, Exhibit D, Exhibit E, Exhibit F Exhibit J)

The constitution and bylaws of an unincorporated voluntary association constitute a contract between those voluntary members and the association. Communication Workers of America, Local 6003 v. Jackson, 1973 OK 125. PC(USA), a voluntary association free to choose its members, chose not to admit corporations. Facts 8, 12. (Exhibit D, Exhibit E, Exhibit F)

Even if the Book of Order were considered an agreement, Defendants cannot establish an interest in the Tulsa County Properties. It is axiomatic that "[e]xtant applicable law is a part of every contract in this state as if it were expressly cited or its terms incorporated in the contract."Public Service Company v. Oklahoma Corporation Commission, 2005 OK 47, ¶ 54, 115 P.3d 861.

The Book of Order trust provision is therefore expressly revocable by the Plaintiff Corporation under the Oklahoma laws cited above. Likewise, the Plaintiff Corporation's property rights are constitutionally protected under Oklahoma law. See, OK Const. art. XXIII, § 8 ("Any provision of a contract, express or implied, made by any person, by which any of the benefits of this Constitution is sought to be waived, shall be null and void")

3. Plaintiff Corporation is entitled to due process of law as to its properties

The deeds to the three tracts of property (A, B, C), all of which name Plaintiff Corporation as grantee, establish property rights in the Corporation that are created and governed by state law. Rocket Oil & Gas Co. v. Donabar, 2005 OK CIV APP 111, ¶57, 127 P.3d 625. The state, acting though a court, may not deprive a party of its property interests without due process of law. See, Booth v. McNight, 2003 OK 49, 70 P.3d 855, 862;see also, OK. Const art. II, § 7.

To satisfy due process in litigation affecting a property interest, "one must at every critical stage of the proceeding be provided with (1) notice at a meaningful time and in a meaningful manner, (2) a realistic opportunity to appear and be heard, and (3) the opportunity meaningfully to participate in the proceedings." Id at 863 (emphasis added)

These rights apply equally to corporations. Baptist Medical Center of Oklahoma, Inc. v. Tanscon Lines, 1993 OK 38, 852 P.2d 139, 143; Ricks Exploration Co. V Oklahoma Water Resources Board, 1984 OK 73, 695 P.2d 498, 505 (corporation's property rights were subject to due process protections)

State and federal laws guarantee the protection of property rights Mattoon v. City of Norman, 1980 OK 137, 617 P.2d 1347, 1349 (reiterating the constitutional guaranty of the right to own and use property is "unquestioned"). The Due Process Clauses of the state and federal constitutions prohibit the deprivation of certain rights and interests (namely, life, liberty and property) without constitutionally adequate procedures. Bird v. Willis, 1996 OK 116, 927 P.2d 547, 551 (finding no statue may deprive one of the property without due process)

Moreover, Plaintiff Corporation has never knowingly and voluntarily waived its right to due process of law for the protection of its property interests, particularly when it is considered that Oklahoma law would govern the creation of any such property interest. See, Oklahoma Constitution, art. XXIII, § 8 ("[A]ny provision of a contract, express or implied, made by any person, by which and of the benefits of this Constitution is sought to be waived, shall be null and void"), 15 O.S. §§ 216, 212; M.J. Lee Construction Company v. Oklahoma Transportation Authority, 2005 OK 87, ¶ 26 n.17. Therefore, a party may not contract away its constitutional right to due process of law in civil courts.³

The court must closely scrutinize action which denies access to courts. Rollings v. Thermodyne, 1996 OK 6, 910 P.2d 1030, 1032; see also id (finding that pursuant to Article 23, Section 8, the Oklahoma Supreme Court has invalidated agreements to release a party from all future liability arising out of a personal injury). Oklahoma status does not provide that a corporation may contract away its right to due process in the civil courts, nor was such a contractual waiver a recognied right at common law.

Thus, if the Book of Order is a contract, any alleged contractual waiver in the Book of Order by Plaintiff Corporation of its constitutional right to due process of law is null and void.

The party invoking waiver as a bar is required to show that the person against whom the bar is asserted did, at the time of the transaction, have knowledge, actual or constructive, of the existence of this rights, and all the material facts upon which they depended."Guinn v. Church of Christ of Collinsville, 1998 OK 8, 775 P.2d 766, 777 N. 42

"The term waiver implies a choice or an election to dispense with something of present value or to forgo some present advantage. Therefore to constitute a waiver, the right or privilege claimed to have been waived must generally have been in existence at the time of the purported waiver.A person cannot waive a right before he is in a position to assert it.A waiver operates in praesent; if it is intended to operate in future, it is merely an agreement to waive." Rogers v. Heston Oil Co., OK 75, 735 P.2d 542, 545 (emphasis added)

3 See also 15 O.S. § 216 stating, "every stipulation or condition in a contract, by which any party thereto is restricted from enforcing his rights under the contract by the usual legal proceedings in the ordinary tribunals, or which limits the time within which he may thus enforce his rights, is void" (emphasis added) and 15 O.S. § 212 stating, "all contract which have for their object, directly or indirectly, to exempt anyone from responsibility for his how fraud, or willful injury to the person or property of another, or violation of law, whether willful or negligent, are against the policy of the law." To the extent the Book of Order violates Oklahoma law (i.e., by attempting to strip Plaintiff Corporation of its due process protections or other statutory rights), such contract is void as against the policy of Oklahoma.

G. Cimarron does not apply

Defendants assert that the"hierarchical deference standard" should control the Court's determination of the pending claims, in disregard of Oklahoma trust, property, contract and corporation statutes. Defendants' position is without support in the law.

For may years Oklahoma courts treated disputes involving churches as inherently implicating ecclesiastical 4 doctrine or practice, and a deferential approach was applied Presbytery of Cimarron v. Westminster Presbyterian Church of Enid, 1973 OK 114, 515 P.2d 211. As noted at the Stay hearing, Cimarron is clearly distinguishable from the fact in the instant case. Further, Cimarron was decided in 1973, at a time when the Oklahoma Supreme Court felt compelled to apply the deference doctrine to the dispute, and noted that it was not free to to otherwise.Cimarron, 183 OK at ∥ 20; and See, Watson v. Jones, 80 U.S. 679 (1872).

But in 1979, the United State Supreme Court actually rejected deference as the exclusive approach, approving instead what the Court cal a better approach in disputes involving churches and property. See, Jones v. Wolf, 443 U.S. 595, 601 (1979)

The U.S. Supreme Court held that, if a property dispute could be resolved on the basis of neutral State law without requiring the district court to resolve religious doctrinal disputes, then the district court should resolve it on that basis. In general, the "neutral principles" approach resolves church property disputes by the court's review of four separate issues: (1) the language in the deed(s); (2) the term of the local church's charters; (3) the state statutes governing the holding of property; and (4) the language of the general church's constitution Id at 602-03.

The U.S. Supreme Court noted

The primary advantages of the neutral-principles approach are that it is completely secular in operation, and yet flexible enough to accommodate all forms of religious organization and polity. The method relies exclusively on objective, well-established concepts of trust and property law familiar to lawyers and judges. It thereby promises to free civil courts completely from entanglement in questions of religious doctrine, polity and practice.Jones v. Wolf,, 443 U.S. 595, 603 [Emphasis supplied]

4 "Ecclesiastical" is defined by the United States Supreme Court as "a matter which concerns theological controversy, church discipline, ecclesicastical government, or the conformity of the members of the church to the standard of morals required of them." Serbian Easter Orthodox Diocese v. Milivojevich, 426 U.S. 696, 713-14 (1976). Civil courts exercise no jurisdiction over matters that are strictly and purely ecclesiastical Id

The Jones Court clarified that the state has "an obvious and legitimate interest in the peaceful resolution of property disputes, and in providing a civil forum where the ownership of church property can be determined conclusively." See, Jones v. Wolf, 443 U.S. 595, 602 (1979). Jones made it abundantly clear that state courts are free to apply a neutral principles approach to church property disputes.

Shortly after Jones, the Oklahoma Supreme Court had the opportunity to consider a church property displute involving a trade name. A trade name may become an asset of great value, the Court concluded, and a corporation, even a non-profit one, is entitled to the protections afforded other corporations. Oklahoma District Council of the Assemblies of God v. New Hope Assembly of God Church of Norman, Oklahoma, Inc., 1979 OK 107, 597 P.2d 1211 ("New Hope")

The "question presented is whether District is entitle to an injunction enjoining New Hope [local church] from using the term "Assembly of God" in its name" Id at 1213. The Court held that the issue does not involve a controversy over a religious doctrine. "This question must be resolved upon neutral, non-religious grounds," and unanimous Oklahoma Supreme Court concluded. Id at 1213. [emphasis supplied]

Since Jones a majority of states have applied the neutral principles approach. All Oklahoma decisions following Jones and New Hope have indicated that such property disputes can be resolved by secular courts. For example, in Fowler v. Bailey 1992 OK 160, ¶ 6, 844 P.2d 141, eight members of the Oklahoma Supreme Court agreed that a secular court could properly adjudicate a church property dispute. "The Courts will not interfere with the internal affairs of a religious organization except for the protection of civil or property rights," Id at ¶ 6 [emphasis supplied]. This rule is now known as the "Fowler" exception. See Daniels v. Union Baptist Ass'n, 2001 OK 63, ¶11, 55 P.3d 1012.

"There can, however, be no doubt but that the civil courts do not have authority to resolve property disputes between rival factions of a church," Fowler, supra, relying on the U.S. Supreme Court's ruling in Jones v. Wolf, 443 U.S. 595, 602 (1979) [emphasis supplied] See Daniels v. Union Baptist Ass'n 2001 OK 63, ¶11, 55 P.3d 1012

In Daniels, 2001 OK 63, ¶9, 55 P.3d 1012, the Court, while noting that "in a proper case, courts will protect property rights in an ecclesiastical setting," found that the district court lacked subject matter jurisdiction in that case, because the act of removing the pastor occurred in the context of a church business meeting and did not involve property rights under Oklahoma law. See Daniels v. Union Baptist Ass'n 2001 OK 63, ¶4, 55 P.3d 1012,1014

In 2002, the Oklahoma Court of Civil Appeals undertook a purely secular examination of a property title dispute between a church and its neighbor. See, Oaks Country Club v. First Presbyterian Church USA of Tulsa, 2002 OK CIV APP 112, 60 P.2d 506.

Accordingly, the Cimarron case is not dispositive of this case5 Its' holding has been qualified by Jones, New Hope, Fowler, Daniels and Oaks, Supra, all decided after Cimarron. Presbytery of Cimarron v. Westminster Presbyterian Church of Enid, 1973 OK 114, 515 P.2d

5 The Cimarron case contains numerous other factual differences when compared with the instant case. There, the local church apparently was considered a "mission church" and receive substantial monetary support and subsidy from the nation church. Plaintiff Corporation, on the other hand, is self-sustaining and has been in sole possession of its property for 35 years. In addition, the Cimarron local church went through the presbytery's administrative process and, by the time documents were filed in court, the local church had already been dissolved. Here the opposite is true. At the time the Petition was filled in this case, Plaintiff Corporation is not dissolved. Further, since Plaintiff Corporation is not a member of PC(USA), the language of the PC(USA)'s Book of Order is inapplicable

V. Conclusion

This Court is the proper - and only - forum where the property disputes at issue here may be finally and conclusively resolved. These issues are governed by Oklahoma laws which are dispositive of the issues. Summary judgment is appropriate on the claims of the quiet title, declaratory judgment and breach of fiduciary for the reasons and based upon the authorities set forth above.

WHEREFORE, premises considered, Plaintiff Corporation requests the Court grant its Motion for Summary Judgment, quiet title to the Tulsa County Properties in Plaintiff Corporation, declare that Defendants have no legal, equitable or other interest in the Tulsa County Properties, grant judgment for Plaintiff Corporation the claim for breach of fiduciary duty, award Plaintiff Corporation it reasonable attorney's fees and costs incurred herein, and grant Plaintiff Corporation such further relief as is just and equitable.

Exhibits

Exhibits

  1. Exhibit A, "Articles of Incorporation"
  2. Exhibit A², "Certificate of Incorporation"
  3. Exhibit B, "Affidavit of Kyle Travis"
  4. Exhibit C, "Plat of Property"
  5. Exhibit D, "The Presbyterian Family Connections"
  6. Exhibit E, "Book Of Order 2005/2007 Excerpts"
  7. Exhibit F, "Affidavit of Rev. Ann Brizendine"
  8. Exhibit G, "Quit-Claim Deed Feb 8, 1969"
  9. Exhibit H, "General Warranty Deed March 14, 1978"
  10. Exhibit I, "Quit-Claim Deed Sept 8, 1995"
  11. Exhibit J, "Amended and Restated Certificate of Incorporation"
  12. Exhibit J2, "Amended Not For Profit Certificate of Incorporation"
  13. Exhibit K, "Corporation Bylaws"
  14. Exhibit L, "Unanimous Consent to Action Taken in Lieu of a Special Meeting"
  15. Exhibit M, "Trustee Meeting Minutes, Tues, Aug 15, 2006"
  16. Exhibit N, "Companion to the Constitution"
  17. Exhibit O, "Affidavit, Glenn Elliott, Corporation Secretary"
  18. Exhibit P, "Affidavit, Lindsay H Fick, Clerk of the Session"

Exhibit A, "Articles of Incorporation"

Articles of Incorporation of Kirk of the Hills, United Presbyterian, Tulsa, Oklahoma

Know All Men of These Presents, that we, whose names are hereunto subscribed, do hereby associate ourselves together for the purpose of forming a corporation under the provisions of the corporation laws of the State of Oklahoma, and for that purpose state:

FIRST

The name of this corporation shall be, KIRK OF THE HILLS, UNITED PRESBYTERIAN, Tulsa, Oklahoma.

SECOND

This corporation is organized for the purpose of supporting worship of Almighty God and instruction in the Christian religion, according to the Constitution of The United Presbyterian Church in the United States of America. This will be done by establishing and maintaining a church for religious worship and religious activity and for the promotion of the social and spiritual welfare of the community, which shall be of a purely beneficent character, and to acquire such property, real and personal, as may be necessary for carrying out of the general purposes above declared; and to borrow money and pledge the property of the corporation to secure the repayment thereof; and to sell property in order to promote or accomplish the objects for which the said corporations is organized.

THIRD

The location of this corporation shall be Tulsa, County of Tulsa, State of Oklahoma.

FOURTH

The term for which this corporation shall exist shall be perpetual

FIFTH

There shall be three Trustees of this corporation; and at election held in Tulsa County, State of Oklahoma, on the 12th day of November, A.D. 1961, the following name trustees were elected to serve until their successors where chosen:

Thomas R. Brett4310 East 60th Place, Tulsa, Oklahoma
C. Ray Grosvenor3412 East 57th Street, Tulsa, Oklahoma
William V. Knight5606 South Quebec, Tulsa, Oklahoma

In Witness Whereof, we have hereunto set our hand at Tulsa, County of Tulsa, State of Oklahoma, this 20th day of November, A.D. 1961.

Exhibit A², "Certificate of Incorporation"

Office of the Secretary of State
State of Oklahoma
Certificate of Incorporation
Kirk of the Hills, United Presbyterian
21 November A.D., 1961

Exhibit B, "Affidavit of Kyle Travis"

I, KYLE TRAVIS, being of sound, mind, legal age and competent to testify herein, do swear and state on my solemn oath as follows:

  1. This Affidavit is base upon my personal knowledge and is given for use in the captioned proceeding.
  2. I am currently a Trustee for Plaintiff, Kirk of the Hills Corporation.
  3. Plaintiff Corporation, f/k/a Kirk of the Hills, United Presbyterian, Tulsa, Oklahoma, is an Oklahoma not-for-profit corporation formed on November 20, 1961, as a perpetual corporation, with the authority to acquire and dispose of real and personal property, to borrow money and to pledge property to secure repayment of such loans.
  4. As an Oklahoma not-for-profit corporation, Plaintiff Corporation has continuously operated its business in accordance with the corporate formalities through members (analogous to shareholders), trustees (analogous to directors), and officers. Further, since its incorporation in 1961; it has regularly held membership and trustees' meetings; it has maintained its distinct corporate existence in good standing with the Oklahoma Secretary of State; it has maintained one or more bank accounts; and it has been the sole manager of its properties.
  5. Plaintiff Corporation real properties (marked Tract A, B, and C) are identified on the attached plat.
  6. Plaintiff Corporation is a separate and distinct entity from the unincorporated voluntary association known as the Kirk of the Hills Church, which has its own board of directors, called the Session, elected by the members, and which Session holds regular meetings to conduct church business.
  7. The Kirk of the Hills Church, at the largest congregational meeting in the history of the church, approved the decision of its Session to disaffiliate from the PC(USA), and thus the EOP, by a vote of 967 to 36, with 8 abstentions, on August 30, 2006
  8. Plaintiff Corporation never conveyed a trust interest in the Tulsa County Properties to either of the Defendants.
  9. PC(USA) was formed in 1983 (when the United Presbyterian Church in the United States("UPCUSA") united with the Presbyterian Church in the United States("PCUS"))
  10. Plaintiff Corporation never agreed to be bound by PC(USA)'s governing document or its purported trust provision
  11. Plaintiff Corporation is not now and never has been a member of either FOP or PC(USA).
  12. According to PC(USA)'s governing document ("Book of Order"), a corporation cannot become a member of PC(USA).
  13. Only a natural person capable of making a profession of faith may become a member of PC(USA)
  14. Plaintiff Corporation has not had and presently does not have a contractual relationship with either Defendant. Neither Defendant is an officer, trustee or member of Plaintiff Corporation.
  15. On February 8, 1969, Plaintiff Corporation, a/k/a Kirk of the Hills United Presbyterian Church in the U.S.A., a corporation, purchased from EOP, a/k/a Presbytery of Eastern Oklahoma of the United Presbyterian Church in the U.S.A., c corporation, "all [EOP's] right, title, interest, and estate, both at law and in equity, of, in and to" Tract A by a Quit-Claim Deed
  16. In the Quit-Claim Deed, EOP did not reserve any legal, equitable, or other interest or claim in Tract A.
  17. On March 14, 1978, Plaintiff Corporation, a/k/a Kirk of the Hills United Presbyterian, an Oklahoma Corporation, obtained legal and equitable title to Tract B by a General Warranty Deed from another corporation, N.M.F., Inc.
  18. On the dates Plaintiff Corporation purchased Tracts A and B, PC(USA) did not exist and there was no trust provision in the constitution of the denomination to which the Kirk of the Hills Church belonged.
  19. On September 5, 1985, Plaintiff Corporation, a/k/a Kirk of the Hills United Presbyterian, purchased legal and equitable title to Tract C from certain individuals by a Quit-Claim Deed executed by James B. Eagleton and Grace B. Eagleton, husband and wife, and Travis Freeman and Lucia Freeman, husband and wife.
  20. Plaintiff Corporation purchased the Tulsa County Properties and has held title thereto continuously since each asset was acquired.
  21. Plaintiff Corporation paid for Tracts A, B and C; Plaintiff Corporation constructed improvements on Tracts A, B, and C at its own expense; and Plaintiff Corporation has at all times furnished, maintained, and insured Tracts A, B and C at its own expense.
  22. Plaintiff Corporation owns all right, title and interest in and to all improvements attached to and made a part of Tracts A, B and C.
  23. Neither Defendant has ever claimed or asserted any control over any of Plaintiff Corporation's personal property until the 2006 assertion of the trust.
  24. Plaintiff Corporation has the authority to buy, sell, manage, improve, assign, transfer, convey, take, acquire, dispose of, encumber, mortgage, pledge, lease, let, sublet, develop, construct, and otherwise use real estate and/or real property; and to buy, sell, manage, improve, develop, assign, transfer, convey, lease, pledge, dispose of, mortgage or otherwise encumber personal property.
  25. Plaintiff Corporation has the authority to make and alter its Certificate of Incorporation by Bylaws without notice to, or the approval of, EOP or PC(USA)
  26. Plaintiff Corporation's Certificate of Incorporation and Bylaws did not create a trust in favor of PC(USA) or EOP
  27. There is no written instrument signed by Plaintiff Corporation conveying a legal or equitable (trust) interest to PC(USA) or EOP with respect to any of the Tulsa County Properties.
  28. Even if a trust had been created in favor of either or both of the Defendants (which Plaintiff Corporation denies), Plaintiff Corporation revoked such trust on July 4, 2006.
  29. Plaintiff Corporation never executed a waiver of its rights to the civil court system, to due process of law, or to the protections of the federal and Oklahoma constitutions.
  30. Plaintiff Corporation's amended and restated Certificate of Incorporation and Bylaws, dated June 28, 2006, make no mention of, or reference to, PC(USA) or EOP.
  31. On August 15, 2006, Plaintiff Corporation renounced any and all authority of PC(USA) and EOP over Plaintiff Corporation, to the extend any affiliation or association between the two may be alleged to have existed.

Further Affiant Sayeth Not
Kyle Travis
Subscribed and Sworn to before me this 17 day of January, 2007

Exhibit C, "Plat of Property"

Exhibit D, "The Presbyterian Family Connections"

Exhibit E, "Book Of Order 2005/2007 Excerpts"

Entire "Book of Order" as PDF
Excerpts of the "Book of Order" as PDF

Book of Order Excerpts as jpg's









Exhibit F, "Affidavit of Rev. Ann Brizendine"

I, Rev. An Brizendine, being of majority age and first duly sworn, on oath, state:

  1. I am President of the Board of Trustees of Eastern Oklahoma Presbytery.
  2. According to the Bylaws of Eastern Oklahoma Presbytery, the President of the Board of Trustees of Eastern Oklahoma Presbytery is the President of the Corporate body.
  3. In my capacities with the Presbyterian Church (U.S.A.), I am familiar with the polity of the Presbyterian Church (U.S.A.) and issues involving the Book of Order of the Presbyterian Church (U.S.A.).
  4. The Presbyterian Church (U.S.A.) is governed by a constitution which includes two parts, the Book of Confessions the Book of Order.
  5. The Book of Order deals with relationships between churches and presbyteries.
  6. Section G-8.0201, of the Book of Order provides:

    All property held by or for a particular church, a presbytery, a synod, the General Assembly, or the Presbyterian Church (U.S.A.), where legal title is lodged in a corporation, a trustee or trustees, or an unincorporated association, and whether the property is used in program of a particular church or of a more inclusive governing body or retained for the production of income, is held in trust nevertheless for the used and benefit of the Presbyterian Church (U.S.A.).

  7. The polity of the Presbyterian Church (U.S.A.) places the presbytery in the position of immediate beneficiary of the trust.
  8. A Presbytery has authority to determine the location of churches pursuant to Section G-11.0103j, of the Book of Order
  9. A church cannot sell or encumber its real property without permission of its Presbytery pursuant to Section G-8.0501 of the Book of Order, which states:

    A particular church shall not sell, mortgage, or otherwise encumber any of its real property and it shall not acquire real property subject ot an encumbrance or condition without the written permission of the presbytery transmitted through the session of the particular church.

  10. A presbytery has the authority to sell, dispose of and control all church property and theres is an explicit provision regarding that authority as to churches that are dissolved in Section G-8.0401. of the Book of Order, which states:

    Whenever a particular church is formally dissolved by the presbytery, or has become extinct by reason of the dispersal of its members, the abandonment of its work, or other cause, such property as it may have shall be held, used, and applied for such uses, purposes, and trusts as the presbytery may direct, limit, and appoint or such property may be sold or disposed of as the presbytery may direct, in conformity with the Constitution of Presbyterian Church (U.S.A.)

  11. Attached hereto is a legal description(s) for church property located within the bounds of Eastern Oklahoma Presbytery which is subject to the above described constitutional provisions of the Presbyterian Church (U.S.A.).

    12. DATED this 2nd day of March, 2006

    Exhibit G, "Quit-Claim Deed Feb 8, 1969"

    This Indenture, made this 8th day of February A.D., 1969 between Presbytery of Eastern Oklahoma (formerly know as the Presbytery of Tulsa) of the United Presbyterian Church in the U.S.A., a corporation, of Tulsa County, State of Oklahoma, party of the first part and Kirk of the Hills United Presbyterian Church in the U.S.A., a corporation party of the second part.

    WITNESSETH, That said party of the first part, in consideration of the sum of TEN DOLLARS and other good and valuable considerations to it duly paid. the receipt whereof is hereby acknowledge, does herby quit-claim, grant, bargain, sell and convey,unto the said party of the second part, and to its heirs and assigns forever, all its right, title, interest and estate, both at law and in equity, of in and to the following described real estate, situated int the County of Tulsa, State of Oklahoma, to wit: The North 396 feet of the West 660 feet of Lot Two (2), in Section Four(4), Township Eighteen(18) North, Range Thirteen (13) East, Tulsa County, Oklahoma. SUBJECT to any and all outstanding indebtedness which the Grantee assumes and agrees to pay.

    Together with all and singular the hereditaments and apparteances thereunto belonging TO HAVE AND TO HOLD the above granted premises unto the said party of the second part its heirs amd assigns forever.

    In Witness Whereof, The said part of the first part has hereunto set its hand the day and year written

    Presbgytery of Eastern Oklahoma (formerly known as the Presbytery of Tulsa) of the United Presbyterian Church in the U.S.A. Erwin D Phillips, President

    ATTEST: Earl H Lewis, Secretary

    Exhibit H, "General Warranty Deed March 14, 1978"

    THIS INDENTURE, Made the 14 day of March A.D., 1978 between N.M.F. INC. a corporation, organized under the laws of the State of Oklahoma of the County of Tulsa, State of Oklahoma, party of the first part, and Kirk of the Hills, United Presbyterian, an Oklahoma Corporation, party of the second part.

    WITNESSETH, That on consideration of the sum of Ninety-three Thousand Five Hundred and no/100 DOLLARS, the receipt of which is hereby acknowledged, said part of the first part does, by these presents, grant, bargain, sell and convey unto said party of the second its successors and assigns, all of the following described real estate, situated in the County of Tulsa, State of Oklahoma, to wit:

    A part of LIVINGSTON PARK, BLOCK 1, an Addition to the City of Tulsa, Tulsa County, State of Oklahoma, being more particularly described by metes and bounds as follows, to wit: BEGINNING at the Northwest Corner of LIVINGSTON PARK, BLOCK 1, according to the recorded plat thereof, said point being 50.00 feet South of the North line of Section 4, Township 18 North, Range 13 East, and 660.00 feet East of the West line of the NE 1/2 of Section 4, thence S 89°53'03" E a distance of 214.85 feet to a point; thence due South a distance of 55.21 feet; thence along a curve to the left, with a central angle of 30°00'00" and a radius of 210.00 feet a distance of 109.96 feet; thence S 30°00'00" E a distance of 105.00 feet; thence S 60°00'00" W a distance of 243.19 feet; thence along a curve to the left, with a central angle of 8°00'00" and a radius of 190.00 feet a distance of 26.53 feet to a point; thence due West a distance of 722.48 feet to a point; thence due East a distance of 535.27 feet to a point, thence S 89°52'03" E, and parallel with the North line of Section 4, a distance of 124.73 feet to a point; thence N 0°04'11" W a distance of 346.00 feet to the point of beginning, and containing 2.5688 acres, more or less.

    TO HAVE AND TO HOLD together with all and singular the tenements, hereditaments, and appurtenances thereunto belonging or in any wise appertaining forever. and said N.M.F. INC. its successors or assigns, does hereby covenant, promise and agree to and with said part of the second part at the delivery of these presents it is lawful seized in its own right of an absolute and indefeasible estate of inheritance if fee simple, of and in all singular the above granted and described premises, with the appurtenances; that the same are free, clear, and discharged and unencumbered of and from all former and other grants, titles, charges, estates, judgments, taxes, assements and encumbrances of whatsoever nature and kind. The purchase price is $93,500.00, together with interest thereon at the rate of 9-1/4 per annum commencing January 1, 1978, in part evidenced by $92,500.00 purchase price note and mortgage of even date and that said Corporation will WARRANT and FOREVER DEFEND the same unto said party of the second parties/successors, and assigns, against said party of the first part, their successors or assigns, and all and every person or persons whomever, lawfully claiming or to claim the same.

    IN WITNESS WHEREOF, The said part of the first part hereto has caused these presents to be signed in its name by its president, and the corporate seal to be affixed, attested by its Secretary at Tulsa, Oklahoma, the year and day first above written.

    Never Fail, Jr. President, March 18, 1978

    Attest: B. M. Clough

    to have and to hold together with all tenements, hereditaments, rights, privileges and appurtenances to the game appertaining,

    Exhibit I, "Quit-Claim Deed Sept 8, 1995"

    This Indenture, made this 5th day of September A.D., 1995 between James B Eagleton and Grace B Eagleton,husband and wife. and Travis Freemand and Lucia Freeman, husband and wife of Tulsa County, State of Oklahoma, party of the first part and Kirk of the Hills United Presbyterian, party of the second part.

    WITNESSETH, That said party of the first part, in consideration of the sum of ONE and no/100 DOLLARS to them duly paid, the receipt whereof is hereby acknowledge, does hereby quit-claim, grant, bargin, sell and convey, unto the said party of the second part, and to its successors and assigns forever, all its right, title, interest and estate, both at law and in equity, of in and to the following described real estate, situated int the County of Tulsa, State of Oklahoma, to wit:

    PRT LT 1 BEG 428.24S NWC NE Th E722.48 SWLY ON CRV LF 40.85 W693.16 N24.07 POB BLK 1 LIVINGSTON PARK BLOCK 1

    Together with all and singular the hereditaments and appurtenances thereunto belonging TO HAVE AND TO HOLD the above granted premises unto the said party of the second part its heirs and assigns forever.

    In Witness Whereof, The said party of the first part have hereunto at their hands the day and year above written

    James B Eagleton and Grace B Eagleton and Travis Freemand and Lucia Freeman

    Exhibit J, "Amended and Restated Certificate of Incorporation for Kirk of Hills Corporation"

    The undersigned corporation, organized and existing under and by virtue of the statutes of the State of Oklahoma as amended and superseded by the Oklahoma General Corporation Act for the purpose of adopting and Amended and Restated Certificate of Incorporation, does hereby submit:

    1. The name of the corporation is KIRK OF THE HILLS CORPORATION
    2. The name under which the corporation was originally incorporated was KIRK OF THE HILLS, UNITED PRESBYTERIAN, TULSA, OKLAHOMA, under original incorporation of dat of November 21, 1961
    3. The original Articles of Incorporation as as adopted under the statues of the State of Oklahoma and as amended and restated from time to time are hereby completely amended pursuant to and under the Oklahoma General Corporation Act, and as amended by the Amended and Restated Certificate of Incorporation, shall read as follows:
      1. Name. The name of the corporation is: KIRK OF THE HILLS CORPORATION
      2. Non Profit Corporation. This Corporation is not for profit, and as such the Corporation does not afford pecuniary gain, incidentally or otherwise. The members of the Corporation shall be the Members of the church congregation known as the Kirk of the Hills. The Corporation shall have no capital stock and shall not be authorized to issue capital stock.
      3. Purpose. This Corporation is organized for the purpose of supporting worship of Almighty God and instruction in following Jesus Christ. This will be done by establishing and maintaining a church for religious worship and religious activity and for the promotion of the social and spiritual welfare of the community, which shall be of a purely beneficent character.

        4. The Corporation is organized exclusively for religious, educational or charitable purposes, including, for such purposes, the making of distributions to organizations that qualify as exempt organizations under Section 501(c)(3) of the Internal Revenue Code of 1986 (or the corresponding provision of any future United States Internal Revenue Law), and more specifically as follows;

        1. To advance the Gospel of Jesus Christ throughout the United States and the world, utilizing all forms of communication and any and all forms of media now or hereafter known to broadcast and advance the Gospel of Jesus Christ;
        2. To promote the teaching and acceptance of the Gospel; to provide ministerial and general education; to establish, maintain, promote, and assist the evangelical Christian faith; to assist evangelical Christian missionaries int the advancement and discipleship for Christ of save and unsaved humanity in the United State and throughout the world; to provide good, services, and materials, including but not limit to foodstuffs, clothing, medical supplies, medical equipment, drugs, technical advice, literacy materials and services, legal services and assistance, discipleship and Bible study materials, Bibles, agriculture assistance, video, audio, visual, and photographic services and assistance for the advancement of the Gospel of Jesus Christ throughout the United States and the world; to promote the evangelization of the world for Christ.
        3. To buy, exchange, mortgage, sell or otherwise acquire and deal in property, real and personal, as my be necessary to promote and accomplish the purpose for which the Corporation is organized; to receive gifts, legacies, and donations from any source whatever; and to perform all other acts as may be required for the carrying on of the general purposes described herein, which are now or hereafter authorized by the laws of the State of Oklahoma.

        No part of the net earnings of the Corporation shall Inure to the benefit of, or be distributable to its Members, Session, Deacons, Trustees, officers, or other private person, except that the Corporation shall be authorized and empowered to pay reasonable compensation for services rendered and to make payments and distributions in furtherance of the purposes set forth herein.

        No substantial part of the activities of this Corporation shall be the carrying on of propaganda or otherwise attempting to influence legislation, and the Corporation shall not participate in, or intervene (including the publishing or distribution of statements) in any political campaign on behalf of or in opposition to any candidate for public office.

        Notwithstanding any other provision of the Certificate, the Corporation shall not carry on any other activities not permitted to be carried on (10 by a Corporation exempt from federal income tax under Section 501(C)(3) of the Internal Revenue Code of 1986(or the corresponding provision of any future United States Internal Revenue Law) or (2) by a corporation. contributions to which are deductible under Section 170(2)(2) of the Internal Revenue Code of 1986 (or the corresponding provision of any future United States Internal Revenue Law).

      4. Term. The Term for which this Corporation shall exist shall be perpetual.
      5. Board of Trustees. The Corporation shall be managed by a Board of Trustees. There shall be no less than three (3) Trustees and no more than nine (9) Trustees. The Trustees shall be elected by and from the Members of the Kirk of the Hills.

        The Board of Trustees shall have general charge of the affairs and any and all property and assets of the Corporation. It shall be the duty of the Trustees to carry out the purposes and functions of the Corporation. The Trustees shall be elected in accordance with the Bylaws of the Corporation and shall have the powers and duties set forth in the Certificate of Incorporation and in such Bylaws (including adopting and amending such Bylaws, and increasing the number of Trustees (so long as there no more than nine (90 Trustees) and decreasing the number of Trustees (so long as there are at least three (3) Trustees)), to the extent that such power and duties are not inconsistent with the status of the Corporation as a nonprofit corporation that is described in Internal Revenue Code 501(c)(3).

      6. Powers. This Corporation shall have and posses any and all power conferred upon corporations by the laws of the State of Oklahoma as may now or hereafter be in effect. The Corporation is authorized to engaged in any lawful act or activity for which like corporations may be organized under the Oklahoma General Corporation Act, but only insofar as such act or activity is not inconsistent with the requirements for recognition under Internal Revenue Codes 501(c)(3), including but not limited to the following:
        1. To make and alter its Bylaws, consistent with the Certificate of Incorporation and with the laws of this State, for the due and orderly administration and regulation of the affairs of this Corporation;
        2. To appoint or elect such officers as the affairs of the Corporation may require and define their duties and fix their compensation;
        3. Insofar as permitted by law as may be necessary to promote and accomplish the purpose of this Corporation, to buy, sell, manage, improve, assign, transfer, convey, take acquire or dispose of real estate and/or real property, including fractional interests therein; to encumber, mortgage or pledge such real estate and/or real property, to lease, let and sublet such real estate and/or real property to improve, develop, construct, and otherwise use such real estate and/or real property;
        4. To buy, sell manage, improve, develop, assign, transfer, convey, lease, pledge, dispose of or to mortgage or otherwise encumber personal property of any kind whatever;
        5. To receive gifts, legacies and donations, as well to make gifts and donations in any lawful form, from any source, or to an person or entity, permitted by laws; and
        6. To perform such other acts which are now or may be hereafter be required and authorized by the laws of the State of Oklahoma and any other jurisdiction to which this Corporation my become subject, or carry out the general and specific purposes described herein.
      7. Church Office. The street address of the location of the Church is:
        4102 East 61st Street
        Tulsa, Oklahoma 74136
      8. Registered Office and Registered Agent. The registered office of the Corporation shall be:
        4102 East 61st Street
        Tulsa, Oklahoma 74136

        The registered agent of the Corporation as such address shall be: Bart C. Jones
      9. Limitations of Liability of Trustees, or Session. A trustee, or a member of Session is not liable to the Corporation for monetary damages for an act or omission in the Trustee's or Session member's capacity except tot the extent otherwise mandated by a statute of the State of Oklahoma or the bylaws of the Corporation.
      10. Indemnification The Corporation shall indemnify all Elders of the Session, Trustee, Deacons and officers, Pastors, and employee of the Corporation to the full extent allowed under the Oklahoma General Corporation Act. Such Indemnification shall be in addition to any other rights to which those indemnified may be entitled under any law, Bylaws, agreement, vote of the Members, resolutions adopted by the Session of Kirk of the Hills, or resolutions adopted by Board of Trustees, or otherwise.
      11. Dissolution. Upon the dissolution of the Corporation, assets shall be distributed for one or more exempt purposes within the meaning of Section 501(c)(3) of the Internal Revenue Code (or the corresponding provision of any future Federal tax code), limited to and entity that is organized for the purpose of supporting worship of Almighty God and instruction in following Jesus Christ. Any such assets not so disposed of shall be disposed of by a Court of Competent Jurisdiction of the county in which the principal office of the Corporation is then located, exclusively for such purposes or to such organization or organizations, as such Court shall determine, which are organized and operated exclusively for such purposes.
      12. Voluntary Association. The Corporation may voluntarily associate, from time to time and for a time, with a denomination as may be appropriate to carry out the general and specific purposes described herein.
      13. Trusts are Revocable. Any property of the corporation held in trust, or deemed to be held in trust, shall be in a revocable trust, unless expressly stated otherwise in writing and signed by the Corporation, such power being expressly reserved by the Corporation.
    4. This Amended and Restated Certificate of Incorporation was duly adopted in accordance with the provisions of Title 15, Oklahoma Statues, Section 1080 after being proposed by the Board of Trustees and adopted by the Members of the Kirk of the Hills in the manner and by the voted prescribe in Title 18, Oklahoma Statutes, Section 1077, and restates and further amends the Certificate of Incorporation.

    IN WITNESS WHEREOF, The Corporation has caused this Amended and Restated Certificate of Incorporation to be signed by its President and Attested by the Secretary, this 28 day of June, 2006

    Kirk of the Hills Corporation

    President and Trustee: ?(unreadable)

    Secretary and Trustee: ?(unreadable)

    Exhibit J2, "Amended Not For Profit Certificate of Incorporation"

    Office of the Secretary of State
    State of Oklahoma
    Amended Not For Profit Certificate of Incorporation
    Kirk of the Hills Corporation
    30 June 2006

    Exhibit K, "Corporation Bylaws of Kirk of the Hills Corporation"

    Article  1.The Bylaws of Kirk of the Hills Corporation, and Oklahoma non-profit corporation, shall always be subject to the Constitution and laws of the State of Oklahoma, and the Congregational Bylaws of the Kirk of the Hills.
    Article  2.The Corporation is structured under the presbyterian form of governance.
    Article  3.There shall be an annual meeting of the Corporation immediately following the ecclesiastical annual meeting of the Members of Kirk of the Hills on or after the second Sunday in October and on or before the second Sunday in November of of each year for the transaction of any business properly coming before such meeting.
    Article  4.Special meetings may be called by the Board of Trustees and shall be called by the Board of Trustees at the request of the Session of the Kirk of the Hills. All such calls for a special meeting shall state clearly the purpose of such meeting, and no other matter save that specified in the call may be considered.
    Article  5.Public notice of the time, place, and purpose of all meetings of the Corporation shall be given on two successive Sundays on or prior to the date of such meeting.
    Article  6.The Board of Trustees shall designate one of its members to convene meetings of the Corporation and preside, unless by majority vote at the time of such meeting, the Corporation shall elect another of its Members in his or her place.
    Article  7.The Board of Trustees shall designate a person from one of their number to serve as secretary of the Corporation meetings, or the clerk of Session of the Kirk of the Hills can so serve.
    Article  8.All Members of the Kirk of the Hills in attendance in person at such meeting shall be entitled to vote at such meeting of the Members of the Kirk of the Hills.
    Article  9.Voting by proxy at any meeting of the Corporation or at any meeting of the Board of Trustees is not allowed.
    Article 10.A quorum at any meeting of the Members of the Kirk of the Hills shall consist of the lesser of five percent (5%) of the Active Members of the Kirk of the Hills, or ten percent (10%) of the Attending Members of the Kirk of the Hills.
    Article 11. There shall be three (3) trustees elected from the Members of the Kirk of the Hills who are also members of the Session of the Kirk of the Hills, divided into three equal classes, on class of whom shall be elected each year at the annual meeting for a three-year term.

    There shall also be three (3) trustees elected from the Members of the Kirk of the Hills, divided into three equal classes, one class of who shall be elected each year at the annual meeting for a three-year term.

    The Board of Trustees, acting in its dual capacity of fulling the task assigned it by the Corporation and the state, shall elect its own president, vice-president, secretary, and treasurer.

    No trustee shall serve on the Board of Trustees for consecutive terms, either full or partial, aggregating more than six (6) years, and shall be elected to a new term until one year shall have elapsed.

    The duties and power of the trustees shall be to hold, encumber, manage, and transfer property, real or personal, for the church, including the investment and reinvestment of funds entrusted to them and to the Corporation and to perform such duties as may be assigned to them by the Session of Kirk of the Hills.

    Matters related to buying, mortgaging, or selling real property shall be pursuant to instructions and authorization received from the Members of the Kirks of th Hills, voting will sitting as the Corporation in a meeting of the Members of the Kirk of the Hills.

    Article 12.To be eligible for election as a trustee, a person must be a Member of the Kirk of the Hills and be at least twenty-one(21) years of age prior to installation as a Trustee.
    Article 13.Vacancies on the Board of Trustees by reason of death, resignation, or incapacity shall be filled at the next annual meeting of the Corporation unless the Board of Trustee decide by resolution to call a special corporate meeting for such purpose.
    Article 14.The Nominating Committee of the Kirk of the Hills is to bring nominations to the Members of Kirk of the Hills at meetings where Elders of the Session, Trustees, Deacons, and the members of the Nominating Committe for the ensuing calendar year are to be elected. This committee shall bring to the meeting nominations of one eligible person only for each Elder of the Session, Trustee, Deacon, and member of the Nominating Committee for the ensuing calendar year to be filled. Additional nominations of qualified persons may be made from the floor by an eligible voter; however, the person to be nominated must have given his or her consent. Those persons nominated will be voted on by class, and if requested by ten percent (10%) o more of the Members attending such meeting as determined by voice vote, a secret ballot vote will be take and the person or persons receiving the majority vote will fill the class. In all other events, a voice vote will be taken from the Members attending such meeting.
    Article 15.Recognition and installation of Trustees shall take place not later than three (3) months following their election.
    Article 16.The duties of Trustees shall be only those delegated to them by the laws of the State of Oklahoma, the Session of the Kirk of the Hills, or, by formal actions of a meeting of the Members of the Corporation.
    Article 17.The Board of Trustees shall report annually to the Corporation at a January meeting:
    (i) The receipts and payment for the previous fiscal year;
    (ii) An estimate of expenses and income for the year ahead;
    (iii) New business necessary to be undertake for the welfare of the Members of Kirk of the Hills.
    (iv) An exhibit of the real property, trust funds, and other resources of the Corporation.
    Article 18.The Board of Trustees shall keep adequate books and records to reflect all financial transactions of the Corporation. Such books and records shall be kept open to inspection by members of the Corporation at reasonable times, except that contribution and pledge records shall be kept private and closed to all persons other than the business office personnel, the Senior Pastors, the chair of the stewardship campaign, and the elder-trustees in active office. Any information as the Session of Board of Trustee may require will be secured from these close records by the above authorized persons in order to maintain confidentiality of pledge and contribution records.
    Article 19.These Bylaws may be amended by a two-thirds (2/3) vote of the Members present at a corporate meeting, subject to the Certificate of Incorporation of the Corporation and the laws of the State of Oklahoma.
    Article 20.The Corporation shall indemnify any and all person who may serve or who may have served at any time as Elder, Trustee, Deacon, officer, pastor, Clerk of the Session, or employee, or who at the request of the Corporation may serve or at any time have served as a trustee, officer, pastor, Clerk of the Session, or employee or agent, or is or was serving at the request of the Corporation served as a trustee, officer, pastor, Clerk of the Session, or employee or agent of another corporation, partnership, joint venture, trust of other enterprise, and their respective heirs, successors, administrators and assigns, against any and all expenses, including amounts paid upon judgments, counsel fees, and amounts paid in settlement (before or after suit is commenced), actually and necessarily incurred by such person in connection with the defense or settlement of any claim, actions, suit or proceedings, in which they, or any of them, are made parties, or a party, or which may be asserted against them or any of them, by reason of being or having been Elder, Trustee, Deacon, officer, pastor, Clerk of the Session, employee or agen of the Corporation, or of such other corporation, except in relation to matters as to which any such Elder, Trustee, Deacon, officer, pastor, Clerk of the Session, employee, or agent, or former Elder, Trustee, Deacon, officer, pastor, Clerk of the Session, employee or agent shall be adjudged in any action, suit or proceeding to be guilty of gross negligence or willful misconduct in the performance of duty. Such indemnification shall be in addition to any other rights to which those indemnified may be entitled under any law, Bylaws, agreement, vote of the Members of Kirk of the Hills, resolutions adopted by the Session of Kirk of the Hills, or resolutions adopted by Board of Trustees, or otherwise.

    The corporation shall have power to purchase and maintain insurance on behalf of any person who is or was a Trustee, member of Session, Deacon, Pastor, Clerk of the Session, officer, employee, or agent of the Corporation or is or was serving at the request the Corporation as a Trustee, member of Session, Deacon, Pastor, Clerk of the Session, officer, employee, or agent of another corporation, partnership, joint venture, trust or other enterprise against any liability asserted against such person and incurred by such person in any such capacity, or arising out of his status as such, where or not the Corporation would have the power to indemnify such person against such liability under the provisions of the foregoing sections.

    Article 21.Meetings shall be conducted in accordance with the most recent edition of Robert's Rules of Order.
    Article 22. (i) "Active Members" for quorum purposes is defined as the total members on the membership rolls of the Kirk of the Hills as of January 1 of such calendar year.

    (ii) "Attending Members" for quorum purposes is defined as the average Sunday morning worship attendance for the previous calendar year.

    (iii) "Incapacity of a Elder on the Session", "Incapacity of a Deacon on the Board of Deacons", "Incapacity of a Trustee on the Board of Trustees", "Incapacity of a any other designated officer or leader" is determined solely by a 75% vote of the Session of the Kirk of the Hills.

    (iii) "Session", or "Session of the Kirk of the Hills" is defined as the twelve (12) edlers elected by the Members of the Kirk of the Hills, the Pastors, and the Clerk of the Session.

    Certificate of the Clerk of the Session

    I certify that I am the duly qualified Clerk of the Session of the Kirk of the Hills Corporation, and further certify that the Corporation Bylaws of the Kirk of the Hills Corporation were adopted at a meeting of the Members of the Kirk of the Hills Corporation on June 28, 2006

    Certificate of the Secretary of the Board of Trustees

    I certify that I am the duly qualified Secretary of the Board of Trustees of the Kirk of the Hills Corporation, and further certify that the Corporation Bylaws of the Kirk of the Hills Corporation were adopted at a meeting of the Members of the Kirk of the Hills Corporation on June 28, 2006

    Exhibit L, "Unanimous Consent to Action Taken in Lieu of a Special Meeting"

    The undersigned, being all of the members of the Board of Trustees of Kirk of the Hills Coporation, hereby consent to and ratify the following resolutions of the Board of Trustee adopted in lieu of a Special Meeting of the Board of Trustees, pursuant to authority granted by the Oklahoma General Corporation Act:

    RESOLVED, that the Kirk of the Hills Coporation hereby declares, states and publishes that the Kirk of the Hills Coporation does not have and has not entered into and does not hold any property (teal or personal) of the Kirk of the Hills Coporation in trust for any person or entity (including but not limited to the Presbyterian Church, USA and/or The Eastern Oklahoma Presbytery of the Presbyterian Church, USA) and has not expressly or by implication create a trust for the benefit of any person or entity (including but not limited to the Presbyterian Church, USA and/or The Eastern Oklahoma Presbytery of the Presbyterian Church, USA) and if it is determined that the Kirk of the Hills Coporation has expressly or by implication hold Kirk of the Hills Coporation property (real or personal) in trust for any person or entity (including but not limited to the Presbyterian Church, USA and/or The Eastern Oklahoma Presbytery of the Presbyterian Church, USA), the Kirk of the Hills Coporation hereby revokes any such express or implied (or any trust whatsoever) trust and declares, states, and publishes expressly and explicitly that Kirk of the Hills Coporation dos not hold Kirk of the Hills Coporation property (real or personal) under any trust arrangement, provisions, or agreement for the benefit of any person or entity (including but not limited to the Presbyterian Church, USA and/or The Eastern Oklahoma Presbytery of the Presbyterian Church, USA).

    FURTHER RESOLVED, that the Kirk of the Hills Coporation has the authority to buy, sell, mortage the Kirk of the Hills Coporation property (real or personal) upon the approval of the Board of Trustees of the Kirk of the Hills, the Session of the Kirk of the Hills (and, if requested withe the approval of the congregation of the Kirk of the Hills) without the conset or approval of any other person or entity (including but not limited to the Presbyterian Church, USA and/or The Eastern Oklahoma Presbytery of the Presbyterian Church, USA).


    President and Trustee: signature

    ATTEST:
    Secretary and Trustee: signature
    Approved and Consented to by the Board of Trustees:
    Trustee: signature 6x

    Exhibit M, "Trustee Meeting Minutes, Tues, Aug 15, 2006"

    Trustees in attendance: Wayne Ward, Kyle Travis, Glen Elliot, Terry Mills, Lou Ann Gibson, Sandy Siegfried

    The Trustees and Session meet in a combined meeting to discuss the following information.

    A quorum was present.

    The meeting opened with prayer.

    PC(USA) legal strategy memorandum

    By virtue of an article published in The Layman Online: PCUSA documents on property: 'true church' vs. 'schismatics' by Joh H. Adams, The Kirk Pastors, Kirk legal consel and several Session Elders and Trustees became aware of a PC(USA) legal strategy memorandum titled - PCUSA legal strategy memorandum - Church Property Disputes: A Resource for Those Representing Presbyterian Church (USA) Presbyteries and True Churches in the Civil Courts - authored on behalf of the PC(USA). The legal strategy memorandum outlies strategies and steps to be taken by presbyteries in regard to property owership disagreements.

    Copies of the The Layman Online article and PC(USA) legal strategy memorandum were distribute to Session and Trustees. A copy is attahed for regerence. The Session and Trustees were given an overview of the PC(USA) legal strategy memorandum.

    At the conclusion of the Executive Session, the Board of Trustees approved the following motions, to take effect immediately:

    Motion: Board of Trustee approval that, effective immediately and to the extent any affiliation or association exists, the Kirk of the Hills Corporation hereby withdraws, disaffiliates and disassociates from, and severs any legal, ecciesiastical or other relationship with the Presbyterian Church (USA) and Eastern Oklahoma Presbytery of the Presbyterian Church (USA) and renouce any and all authority of Presbyterian Church (USA) and Eastern Oklahoma Presbytery of the Presbyterian Church (USA) over the Kirk of the Hills Corporation.

    Motion Approved: For 6, Against 0, Abstain 0

    Motion: Board of Trustee approval that the Kirk of the Hills Corporation hire Thomas W. Gray as Senior Co-Pastor, Kirk of the Hills and R. Wayne Hardy, Senior Co-Pastor, Kirk of the Hills under the samt terms, compensation and benefit levels held in their previous positions as pastors for Kirk of the Hills Within the Presbyterian Church (USA).

    Motion Approved: For 6, Against 0, Abstain 0

    Motion: Board of Trustee approval that, the Kirk of the Hills Corporation hereby affiliates and associates with the Evangelical Presbyterian Church, subject to the approval by the Trustees of the terms and conditions of such affilation and association.

    Motion Approved: For 6, Against 0, Abstain 0

    Motion: Board of Trustee approval that, the Kirk of the Hills Corporation is authorized and direct to file a lawsuit in the District Court of Tulsa County, State of Oklahoma, quieting title to its real and personal property, seeking resolution of any ownership issues or challenges regarding the real and personal property of that Corporation, and asserting such additional claims for relief as the Trustees of the Corporation deem necessary.

    Motion Approved: For 6, Against 0, Abstain 0

    Motion: Board of Trustee approval that, the Board of Trustees may designate such officers, Trustees, Members of the Session or representatives as the Corporation shall choose to exercise the authority to take all action reasonable necessary in the opinion of the designated officers, Trustees, Members of the Session or representatives to accomplish the Resolutions approved on this date; and futher that the Board of Trustees designates Kyle Travis and Paul Goodman to exercise the authority to take all action reasonably necessary in their opinion to accomplish the Resolutions approved on this date.

    Motion Approved: For 6, Against 0, Abstain 0

    The meeting closed in prayer by Wayne Hardy.

    signed: Lou Ann Gibson, Trustee

    Exhibit N, "Companion to the Constitution"

    Companion to the Constitution
    Polity for the Local Church
    by Frank A. Beattie
    ISBN 9780664501464



    Exhibit O, "Affidavit, Glenn Elliott, Corporation Secretary"

    Affidavit

    State of Oklahoma

    County of Tulsa

    The undersigned, Glenn Elliott, Secretary of the Kirk of the Hills Corporation, and Oklahoma corporation, being first duly sworn upon oath deposes and says:

    1. That I am Secretary of the Board of Trustees of the Kirk of the Hills Corporation.
    2. That the Resolution attached as Exhibit A was adpoted on July 4, 2006 and is a true and correct copy.
    3. That this Affidavit and the Resolution applies to following describe property
      See Attached Exhibit B.
    4. That this Affidavit is filed of record to cure, disclaim and nullify the Affidavit files as Document No. 2006-025070 in the Office of the County Clerk of Tulsa County, Oklahoma.

    DATED and GIVEN August 15, 2006

    Exhibit A: see- "Trustee Meeting Minutes, Tues, Aug 15, 2006"

    Exhibit B

    The North Three Hunderd Ninety-siz (396) feet of the West Six Hundred Sixty(660) feet of Lot Two (2), of Section Four(4), Township Eighteen(18) North, Range Thirteen (13) East fo the Indian Base and Meridian, Tulsa County, State of Oklahoma, according to the U.S> Government Survey thereof;

    SAVE AND EXCEPT

    The North 50.00 feet of North 396.00 feet of the Northwest Quarte of the Norwest Quarter of the Northeast Quarter of said Section Four (4), Township Eighteen (18) North, Range Thirteen (13) East fo the Indian Base and Meridian, Tulsa County, State of Oklahoma, according to the U.S> Government Survey thereof;

    and

    A part of LIVINGSTON PARK, BLOCK 1, an Addition to the City of Tulsa, Tulsa County, State of Oklahoma, according to the Recorded Plat thereof, being more particularly described by as follows, to wit:

    BEGINNING at the Northwest Corner of LIVINGSTON PARK, BLOCK 1, said point being 50.00 feet South of the North line of Section 4, Township 18 North, Range 13 East, and 660.00 feet East of the West line of the Northeast Quarter(NE 1/4) of Section 4;
    Thence S 89°53'03" E a distance of 214.85 feet to a point;
    Thence due South a distance of 55.21 feet;
    Thence along a curve to the left, with a central angle of 30°00'00" and a radius of 210.00 feet a distance of 109.96 feet;
    Thence S 30°00'00" E a distance of 105.00 feet;
    Thence S 60°00'00" W a distance of 243.19 feet;
    Thence along a curve to the left, with a central angle of 8°00'00" and a radius of 190.00 feet a distance of 26.53 feet to a point;
    Thence due West a distance of 722.48 feet to a point;
    Thence due North a distance of 42.25 feet to a point;
    Thence due East a distance of 535.27 feet to a point;
    Thence S 89°52'03" E, and parallel with the North line of Section Four(4), a distance of 124.73 feet to a point;
    Thence N 0°04'11" W a distance of 346.00 feet to the point of beginning;

    and

    Part of Lot One(1),BEGINIG 438.25 feet South of the Northe Weste Cornerof the Northeast Quarter(NE 1/4) of Section Four(4), TOwnship Eighteen (18) North, Range Thirteen 13 East;
    Thence East 722.48 feet;
    Thence Southwesterly on a curve to the left with a radius of 190.00 feet a distance of 40.85 feet;
    Thence West 693.16 feet;
    Thence North 24.07 to the POINT OF BEGINNIG;
    All in Block One(1), LIVINGSTON PARK, BLOCK 1, an Addition to the City of Tulsa, Tulsa County, State of Oklahoma, according to the Recorded Plat thereof.

    [Also being described as follows:

    Part of Lot One(1),BEGINIG 438.25 feet South of the Northe Weste Cornerof the Northeast Quarter(NE 1/4) of Section Four(4), TOwnship Eighteen (18) North, Range Thirteen 13 East;
    Thence East 722.48 feet;
    Thence Southwesterly on a curve to the left with a radius of 190.00 feet a distance of 40.85 feet;
    Thence West 693.16 feet;
    Thence North 24.07 to the POINT OF BEGINNIG;
    All in Block One(1), LIVINGSTON PARK, BLOCK 1, an Addition to the City of Tulsa, Tulsa County, State of Oklahoma, according to the Recorded Plat thereof.

    Exhibit P, "Affidavit, Lindsay H Fick, Clerk of the Session"

    Affidavit

    State of Oklahoma

    County of Tulsa

    The undersigned, Lindsay H Fick, Clerk of the Session of the Kirk of the Hills Corporation, and Oklahoma corporation, being first duly sworn upon oath deposes and says:

    1. That I am Clerk of the Session of the Kirk of the Hills Corporation.
    2. That the Resolution attached as Exhibit A was adpoted on July 4, 2006 and is a true and correct copy.
    3. That this Affidavit and the Resolution applies to following describe property
      See Attached Exhibit B.
    4. That this Affidavit is filed of record to cure, disclaim and nullify the Affidavit files as Document No. 2006-025070 in the Office of the County Clerk of Tulsa County, Oklahoma.

    DATED and GIVEN August 15, 2006

    Unanimous Consent to Action Taken in Lieu of a Special Meeting of the Session of Kirk of the Hills Corporation

    Dated July 4, 2006

    The undersigned, being all of the members of the Session of Kirk of the Hills Coporation, hereby consent to and ratify the following resolutions of the Session adopted in lieu of a Special Meeting of the Board of Session, pursuant to authority granted by the Oklahoma General Corporation Act:

    RESOLVED, that the Kirk of the Hills Coporation hereby declares, states and publishes that the Kirk of the Hills Coporation does not have and has not entered into and does not hold any property (teal or personal) of the Kirk of the Hills Coporation in trust for any person or entity (including but not limited to the Presbyterian Church, USA and/or The Eastern Oklahoma Presbytery of the Presbyterian Church, USA) and has not expressly or by implication create a trust for the benefit of any person or entity (including but not limited to the Presbyterian Church, USA and/or The Eastern Oklahoma Presbytery of the Presbyterian Church, USA) and if it is determined that the Kirk of the Hills Coporation has expressly or by implication hold Kirk of the Hills Coporation property (real or personal) in trust for any person or entity (including but not limited to the Presbyterian Church, USA and/or The Eastern Oklahoma Presbytery of the Presbyterian Church, USA), the Kirk of the Hills Coporation hereby revokes any such express or implied (or any trust whatsoever) trust and declares, states, and publishes expressly and explicitly that Kirk of the Hills Coporation dos not hold Kirk of the Hills Coporation property (real or personal) under any trust arrangement, provisions, or agreement for the benefit of any person or entity (including but not limited to the Presbyterian Church, USA and/or The Eastern Oklahoma Presbytery of the Presbyterian Church, USA).

    FURTHER RESOLVED, that the Kirk of the Hills Coporation has the authority to buy, sell, mortage the Kirk of the Hills Coporation property (real or personal) upon the approval of the Board of Trustees of the Kirk of the Hills, the Session of the Kirk of the Hills (and, if requested withe the approval of the congregation of the Kirk of the Hills) without the conset or approval of any other person or entity (including but not limited to the Presbyterian Church, USA and/or The Eastern Oklahoma Presbytery of the Presbyterian Church, USA).


    Elder Trustee: signature 3x
    Elder: signature 9x

    Table of Contents - Exhibits

    Table of Contents - Motion - Summary Judgement

Thursday, March 15, 2007

Corrections Welcomed

Comments, Corrections, Additions, Volunteers WELCOME! spam, hate speech, half truths - will be deleted. NOTE: 3/15/2007 Motion is complete as text, Exhibits is complete as text
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