COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 70063 SALLIE A. BUCHANAN, ET AL., : ACCELERATED DOCKET : : JOURNAL ENTRY Plaintiffs-Appellants : : AND v. : : OPINION SECOND TABERNACLE MISSIONARY : BAPTIST CHURCH, ET AL., : PER CURIAM : : Defendants-Appellees : DATE OF ANNOUNCEMENT OF DECISION: JULY 25, 1996 CHARACTER OF PROCEEDING: Civil appeal from Common Pleas Court Case No. 286126 JUDGMENT: MODIFIED, AND AS MODIFIED, AFFIRMED. DATE OF JOURNALIZATION: APPEARANCES: For plaintiffs-appellants: Albert A. Pottinger 3669 Lee Road Shaker Heights, Ohio 44120 For defendants-appellees: Mark J. Hassett 100 7th Avenue Suite 150 Chardon, Ohio 44024 -2- PER CURIAM: Plaintiffs-appellants appeal from the trial court order which granted defendants-appellees' Civ.R. 12(B)(1) motion to dismiss for lack of subject matter jurisdiction and, further, dismissed appellants' complaint with prejudice. The record reveals appellants are members of the Second Tabernacle Missionary Baptist Church who are dissatisfied with the method in which their church pastor was chosen. Appellees are the church itself and its deacons, trustees and pastor. The church and its members are governed by a "Code and Constitution" which was attached to both appellants' complaint and, subsequently, appellees' motion to dismiss. Appellants' complaint alleged the pastor was neither chosen nor elected in accordance with the church constitution. It prayed for an order declaring the pastor's election "null and void" and enjoining the church from either installing him or paying him. Appellees' answer to the complaint raised the defense of, inter alia, lack of subject matter jurisdiction. Appellees later filed a motion to dismiss the complaint pursuant to Civ.R. 12(B)(1). The trial court eventually granted appellees' motion, dismissing appellants' complaint with prejudice. In their first assignment of error, appellants assert the trial court improperly dismissed their complaint, arguing the matters asserted therein were "secular" in nature, and, thus, the trial court had jurisdiction to determine whether appellees' acts violated the church constitution. -3- Appellants' first assignment of error, however, is overruled on the authority of this court's opinion in Tibbs v. Kendrick (1994), 93 Ohio App.3d 35. A review of the pleadings and the church constitution reveals the trial court's action was proper since appellants have never sought to take their cause to the "proper church authority," viz., the members. See, also, Salzgaber v. First Christian Church (1989), 65 Ohio App.3d 368. It is well-settled that civil courts lack jurisdiction to determine purely ecclesiastical or spiritual disputes of a church or religious organization. Watson v. Jones (1871), 80 U.S. (13 Wall.) 679. Where the members have consented to a plan of church government which provides the means for appeal for such disputes, as in this case, the matter is an ecclesiastical one. Serbian E. Orthodox Diocese v. Milivojevich (1976), 426 U.S. 696. Appellants' action is thus ecclesiastical in nature, therefore, the trial court did not err in granting appellees' Civ.R. 12(B)(1) motion to dismiss. Tibbs v. Kendrick, supra. However, appellants' second assignment of error, which challenges the trial court's action of dismissing the complaint with prejudice, is well-taken. Civ.R. 41(B)(4); Ohio Patrolmen's Benevolent Assn. v. MetroHealth Sys. (1993), 87 Ohio App.3d 16 at 22; Jurko v. Jobs Europe Agency (1975), 43 Ohio App.2d 79 at 88. Accordingly, the order of the trial court is modified to reflect appellants' action was dismissed for lack of subject matter jurisdiction without prejudice. As modified, the trial court's order is affirmed. -4- It is ordered that appellees recover of appellants their costs herein taxed. The court finds there were reasonable grounds for this appeal. It is ordered that a special mandate issue out of this court directing the Common Pleas Court to carry this judgment into execution. A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. PATRICIA A. BLACKMON, PRESIDING JUDGE JOSEPH J. NAHRA, JUDGE JOHN T. PATTON, JUDGE N.B. This entry is made pursuant to the third sentence of Rule 22(D), Ohio Rules of Appellate Procedure. This is an announcement of decision (see Rule 26). Ten (10) days from the date hereof this document will be stamped to indicate journalization, at which time .