Craig Olsen and David Mohn v. Jeff Roper Scott Roper And Debbie Barnes

Cite as 2023 Ark. App. 35
ARKANSAS COURT OF APPEALS
DIVISION III
No. CV-21-534

Opinion Delivered February 1, 2023

CRAIG OLSEN AND DAVID MOHR APPEAL FROM THE FAULKNER
APPELLANTS COUNTY CIRCUIT COURT
[NO. 23CV-19-1164]
V.
HONORABLE CHARLES E.
JEFF ROPER; SCOTT ROPER; CLAWSON III, JUDGE
AND DEBBIE BARNES
APPELLEES AFFIRMED

MIKE MURPHY, Judge

Appellants Craig Olsen and David Mohr (the Olsen Group) appeal the decision of

the Faulkner County Circuit Court dismissing the case between them and appellees Jeff

Roper, Scott Roper, and Debbie Barnes (the Roper Group) for lack of subject-matter

jurisdiction. Their sole argument on appeal is that the circuit court erred in granting the

motion to dismiss.

This litigation stems from two opposing factions of the St. Matthew Lutheran Church

of Conway, a local affiliate of the national Lutheran denomination known as the Lutheran

Church-Missouri Synod. In 2019, Mohr was the pastor of St. Matthew. One faction of the

congregation wanted to keep Mohr as pastor (the Olsen Group); the other faction (the Roper

Group) did not. In early September, church officer elections were held with each side electing
its own officers and each contending the other’s election was invalid.1 The officers elected

by the Roper Group voted to terminate Mohr’s position as pastor.

On September 10, Olsen, holding himself out as president of the congregation and

acting on behalf of the church, moved for a temporary restraining order against the appellees,

alleging violations of the church constitution and by-laws. The appellees counterclaimed for

their own temporary injunction and declaratory judgment, asking the court to declare them

the correct officers.2 Shortly thereafter, an agreed temporary order was entered. That agreed

order, prepared by the Olsen Group, provided “[t]hat the current Pastor of SMLC David

Mohr, shall agree to abide by the final decision of the Lutheran Church-Missouri Synod,

after all available appeal options have been exhausted.”3

A day after the agreed order was signed, the Olsen Group filed articles of

incorporation for a new church, Christ Lutheran Church of Conway. On November 20, the

Olsen Group called a special meeting, and the church members present voted to disband St.

Matthew and transfer its real property and assets to the newly created Christ Lutheran, which

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The Olsen Group believed the Roper Group nominations and votes were invalid
because “non-voting” members participated in the vote. Mohr had “excommunicated” the
implicated members a few months prior, thus allegedly negating their voting status. The
Roper Group asserted, however, that the members at issue were restored as voting members
immediately before the officer elections.
2
On the same day, in a separate case, Jeff Roper moved for a temporary restraining
order against Mohr. The two cases were eventually consolidated.
3
From the outset of litigation, both parties agreed that St. Matthew is a local affiliate
of the national Lutheran denomination, more commonly known as the Lutheran Church-
Missouri Synod.

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happened to be controlled by the appellants, pastored by Mohr, and not associated with the

Synod. That same day, Olsen filed articles of dissolution with the Arkansas Secretary of

State’s office to dissolve St. Matthew and “to transfer all of St. Matthew’s liabilities, assets,

in equal value; and additionally to transfer all members, officers, and our pastor to Christ

Lutheran church of Conway Arkansas.” The Olsen Group then changed the locks on the

church doors.

This prompted the appellees to file a motion for ex parte temporary restraining order,

which the court granted. A hearing followed wherein the court found that the appellants

had directly violated the agreed temporary restraining order. They were ordered to withdraw

the articles of dissolution; provide church keys to the appellees; and pay the appellees’ fines,

fees, and costs. The court appointed Roper Group officers as the temporary officers of the

church. After taking over the church affairs, the appellees filed one additional motion for

contempt concerning some church property and funds, which was also resolved in their

favor.

During the pendency of the litigation, Mohr was eventually removed as the pastor of

St. Matthew by the Synod and expelled from the denomination’s clergy roster. Members of

the Roper Group were also acknowledged by the Synod as officers of the church. Upon

resolution of these two matters through the Synod’s internal reconciliation procedures, the

appellees concluded that continued judicial intercedence was unnecessary.

To that end, on May 4, 2021, the appellees filed a motion to dismiss for lack of

subject-matter jurisdiction and attached exhibits to that motion, including a letter from

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Synod leadership removing Mohr as the pastor (and ultimately expelling him from the clergy

roster entirely). In that motion, the appellees explained that because the Synod had settled

the matter of the church officers, it would pose a fundamental violation of the separation of

church and state for the court to impose any additional judgment on the topic. The circuit

court agreed. Finding that the remaining issues would require it to inquire, interpret, and

apply church doctrine, it dismissed the case for lack of subject-matter jurisdiction.

In the order to dismiss, the circuit court made it clear that it was making its decision

based not only on the pleadings but on a thorough review of the record, which included

numerous hearings, exhibits, other pleadings, documents, and information. We therefore

treat it as a motion for summary judgment. Pursuant to Arkansas Rule of Civil Procedure

12(b) and (c), a motion to dismiss is converted to a motion for summary judgment when

matters outside of the pleadings are presented to and not excluded by the court. Nielsen v.

Berger-Nielsen, 347 Ark. 996, 1003, 69 S.W.3d 414, 418 (2002). Summary judgment is

appropriate when there are no genuine issues of material fact, and the moving party is

entitled to judgment as a matter of law. Id.

Subject-matter jurisdiction is the power of the court to hear and determine the subject

matter in controversy between the parties. Perroni v. Sachar, 2017 Ark. 59, at 4, 513 S.W.3d

239, 242. An Arkansas court lacks subject-matter jurisdiction if it cannot hear a matter under

any circumstances and is wholly incompetent to grant the relief sought. Id.

On appeal, the appellants argue that Arkansas courts have jurisdiction to review and

oversee matters such as church elections when property issues are implicated. They

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extensively cite Viravonga v. Samakitham, 372 Ark. 562, 279 S.W.3d 44 (2008), for their

proposition. In Viravonga the supreme court held that the circuit court had the authority to

oversee and determine who may vote in a temple election when two competing factions of

Wat Buddha Samakitham had each alleged it represented the true board of directors of the

temple corporation. Id. at 569, 279 S.W.3d at 49. The court explained that due to the state’s

“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,” jurisdiction existed for the court “to decide legal questions involving the

ownership and control of church property.” Id.

Here, the parties agree the church officers control the church property. Accordingly,

the court did have subject-matter jurisdiction to, at a minimum, grant the temporary

injunctive and additional temporary relief to preserve the church property and manage its

affairs until the matter of correct church leadership could be otherwise resolved. Thus, we

agree with the appellants that dismissing the entire case whole cloth for lack of subject-matter

jurisdiction is too expansive a ruling.

Despite this, we agree with the appellees that the ultimate dismissal in this case of the

remaining issues—specifically, the appellees’ own claim for declaratory relief for court-

appointed church officers—was appropriate as a matter of law under these specific facts.4

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We note again that the only affirmative relief sought by the Olsen Group was the
request for a temporary restraining order at the outset. It was the Roper Group that
requested declaratory judgment, and that claim was the only issue left to resolve when they
filed their motion to dismiss for lack of subject-matter jurisdiction. So, while the appellees

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The question asked in deciding summary judgment is whether facts in dispute are

material. Durden v. City of Van Buren, 2021 Ark. App. 357, at 6, 635 S.W.3d 342, 346.

Substantive law identifies which facts are material. Id. A material fact is one so significant to

the matter at hand such that if it were different, the result reached in the given case would

also be different. Id.

Both the United States Constitution and the Arkansas Constitution prohibit the

courts from becoming involved in disputes between members of a religious organization that

are “essentially religious in nature” because the resolution of such disputes “is more properly

reserved to the church.” Gipson v. Brown, 295 Ark. 371, 374, 749 S.W.2d 297, 298 (1988).

In the case at bar, it is important that neither party disputes that St. Matthew is a local

affiliate of the national Lutheran denomination, more commonly known as the Lutheran

Church-Missouri Synod.

The church’s constitution, provided as an exhibit to the complaint filed by the Olsen

Group, provides that

[i]f, at any time, a separation should take place within this congregation, the advice of
the officers of District and Synod shall be sought. If, despite all efforts to resolve
differences in peace and love, a division into factions shall occur, the property of the
congregation and all benefits therewith connected shall remain with those members
who continue to adhere in confession and practice to Article 3 of this Constitution
as determined by the reconciliation procedures of the Synod. In the event the
congregation should disband, all property of the congregation shall, after due
settlement of just claims, be conveyed to and become the property of the Mid-South
District of The Lutheran Church-Missouri Synod.

could have dismissed their own claim (again, the only remaining claim) as a matter of right,
they instead moved to dismiss the entire case for lack of subject-matter jurisdiction.

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The church’s constitution affiliates the church with the Missouri Synod and adopts

the Synod’s reconciliation procedure if a division should take place within the congregation.

The church’s constitution further directs that control of the church and its property must

remain with the group that is decided through the Synod reconciliation process. Even when

property rights are involved, rival factions may be remitted to their remedy within the

denomination if its form of government is such as to permit an appeal to higher ecclesiastical

authority. Holiman v. Dovers, 236 Ark. 211, 212, 366 S.W.2d 197, 199 (1963). Religious

freedom encompasses the power of religious bodies to decide for themselves, free from state

interference, matters of church government. Gipson, 295 Ark. at 377, 749 S.W.2d at 300.

The circuit court acted properly and within its jurisdiction in temporarily restraining

the parties in how they may control the church property until the correct church leaders

could be conclusively established. The temporary restraining orders and the orders

concerning contempt were neutral applications of law to enforce the valid state interest in a

peaceful resolution of matters encompassing a dispute over control of property. Importantly,

it afforded necessary protection of church assets while the church’s own reconciliation

process was employed. It, however, was not the court’s place, under these undisputed facts,

to declare who exactly the ultimate church leadership should be; that decision is ecclesiastical

in its character and capable of resolution through the church’s internal government.

Accordingly, it was not erroneous for the circuit court to dismiss the remaining claims as

beyond the scope of its authority. Summary judgment was appropriate.

Affirmed.

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KLAPPENBACH and BARRETT, JJ., agree.

Ryan C. Allen, for appellants.

PPGMR Law, PLLC, by: Kimberly D. Logue and James D. Rankin III, for appellees.

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