ater, WSovse rosy Zi, Zest ew So SO URS BasnD soscteauncdtsLs Dus rwd, CScsssn. Se 4 wn. Ss8sx e\ AR WABSasen SOX 3 i “COMMUNWEAITH oF MassaCHUSETTS BRISTOL, SS. SUPERIOR COURT DEPARTMENT CA.NO. 1943CV0101D BRI. SUZANNE SULLIVAN Plaintiff, v. ‘THE ROMAN CATHOLIC BISHOP OF FALL RIVER a/k/a the DICOCESE OF FALL RIVER and THE VERDIN COMPANY, Defendants See eee PLAINTIFF'S MOTION FOR TEMPORARY RESTRAINING ORDER AND SUPPORTING AFFIDAVIT ‘The plaintiff seeks a temporary restraining order to prevent the iconic Saint Lawrence Church bells, installed in 1888, from being shipped out of state to Ohio. The bells are currently at A-1 Crane’s yard in Fairhaven scheduled to be shipped to Ohio on ‘Monday, November 20, 2017. Relevant Facts ‘The Saint Lawrence Church on County Street in New Bedford is famous for its bell tower which rises over the city. The bells in the Saint Lawrence Church tower were installed in 1888 and were a sound beacon, as far back as the whaling days, for mariners returning to their home port of New Bedford. ‘The bells have been a New Bedford icon for many years. There are 14 bells in total with the names: Sacred Heart, Blessed Virgin Mary, Said Joseph, Seraphim, Cherubim, Thrones, Domination, Virtues, Principalities,Powers, Archangels, Angels, St. Lawrence and St. Pattick. Affidavit of Suzanne Sullivan, $7. The following additional facts are quoted directly from the plaintiff's attached i affidavit: “Ihave been a parishioner at Saint Lawrence Chuch at 565 County Street, New Bedford for my whole life, 70 years, as 1 was baptized there. Affidavit of Suzanne Sullivan, 42 In 2010, an assessment of the physical condition of the Church was undertaken; primarily lead by Father Marek Chmurski.” Affidavit of Suzanne Sullivan, { 3. “As part of that process, the condition of the bell tower and the bells were assessed. At that time I was an unpaid assistant to Father Chmurski and was also on the Church Finance Committee.” Affidavit of Suzanne Sullivan, 4. “Father Chmurski, i along with myself and other parishioner volunteers, decided to undertake a fundraising effort to specifically solicit funds to repair the bell tower and the bells. ‘The fundraising effort for the bells started in 2010.” Affidavit of Suzanne Sullivan, 5. “In June 2010, Father Chmurski and I opened bank accounts specifically established to deposit donations for the bell tower and the bells. There eventually were two accounts for this purpose. One account was called the “Bell Tower Fundraising Account, and the other account was called the “Bell Renovation Account.” Affidavit of Suzanne Sullivan, { 6. “The historical record of the purchase of the bells is attached as Exhibit 1. The document indicates that the bells were installed and blessed in 1888.” Affidavit of Suzanne Sullivan, §/7. “The fundraising events started in June of 2010. The fundraising process was specifically for the funding of the bells and the bell tower restoration. As part of thisprocess, in the summer of 2010 we held a festival on church grounds where all proceeds were paid to the bell and bell tower accounts. Festival attendees were notified at mass and through flyers that the festival fundraising proceeds were for the bells and the bell tower.” Affidavit of Suzanne Sullivan, 8 “In January of 2011, we held a concert in the Church called the “First Annual Bell Tower Concert.” All proceeds from that concert went to the bell tower fundraising account, From January 2011 through January 2014, we held seven (7) concerts to benefit the bells and the bell tower, five at the Church and two at Keith Middle School.” Affidavit of Suzanne Sullivan, 9. “In 2011, we held a second festival specifically designed to raise funds for the bells and the bell tower. It was disclosed to festival attendees that the proceeds from the festival were for the bells and the bell tower | restoration.” Affidavit of Suzanne Sullivan, § 10. i “From June 2010, we also held a number of smaller, informal fundraising efforts such as selling candy and magnets. Those monies went directly into the bell tower account.” Affidavit of Suzanne Sullivan, ¥ 11. Also, from about 2011 through 2013, I started a “30 Week Club” where donations were for solicited 30 weeks with monthly raffles where prizes could be won, The 30 Week Club was announced and disclosed as being specifically for the bells and the bell tower. Affidavit of Suzanne Sullivan, ¥ 12. 13. In addition, from June of 2010 through 2013, we received numerous pledges and donations for the restoration of the bells and the bell tower. The pledge forms, a copy of which is attached as Exhibit 1, specifically stated that the donations were being solicited for the bell tower as the forms stated “St. Lawrence Bell Tower Renovation” with a picture of the tower on the pledges.” Affidavit of Suzanne Sullivan, 13. “As part of this,fundraising process, the highest donor gave $120,000 which was specifically donated for the bell tower, part of which was a specific bequest from a will.” Affidavit of Suzanne Sullivan, 14. “Through these fundraising efforts, we raised approximately $367,411. I know this for a fact because my name was on one of the accounts and I was in charge of deposits, keeping track of the money and fundraising,” Affidavit of Suzanne Sullivan, 15. “In 2012, Father Chmurski and the Church Finance Committee, of which I was member, hired an architect to design plans for the restoration of the bell tower. I saw the plans and have a copy of them.” Affidavit of Suzanne Sullivan, 16. “Afier obtaining the architect’s plans, a bidding process was undertaken where contractors submitted bids. The Finance Committee decided on a contractor whose bid ‘was $218,600. ‘The bid price was lower than the monies we had raised for the bell tower and bell restoration project through our fundraising, Affidavit of Suzanne Sullivan, $17. 18. On June 6, 2013, Father Chmurski sent a letter to the Bishop requesting authority to proceed with the project. Exhibit 2 (June 6, 2013 Letter).” Affidavit of Suzanne Sullivan, qs. “Father Chmurski was replaced in 2014. After Father Chmurski was replaced, the Diocese of Fall River asked me to remove the monies from the bell tower and bell accounts and give it to the Diocese of Fall River. I refused. The Diocese then removed the money on its own without my help.” Affidavit of Suzanne Sullivan, J 19. “In the Fall ‘0f 2014, the new priest at the Church indicated to parishioners that he wanted to sell the bells. I did not agree and went to the Standard Times to explain that the Diocese hadtaken the money that had been specifically donated to restore the bell tower and bells.” Affidavit of Suzanne Sullivan, $ 20. “In response to the news article, I was thrown off every committee and told that I could not be involved in any fundraising efforts.” Affidavit of Suzanne Sullivan, § 21 22. “In a the Church Bulletin for October 5, 2014, the new priest, confirms that the Diocese ceased the funds from the bell tower fundraising efforts and commented on the Standard Times article by stating: “This article further states that | think the bells should be sold. This is false. I have never said that to anyone least of all to a reporter. When I discussed last spring with the Verdin Bell Company that I dida’t know if we would ever have sufficient funds to repair the bells because of so many other pressing needs for the church repair, he suggested to me the selling of the bells to them. I simply decided to pass on that suggestion to the parishioners for their input. Simple and clear.’ Exhibit 3.” Affidavit of Suzanne Sullivan, § 22. “In the end of 2014, Church bulletins indicated that the Church was in the process of signing contracts for the repair of the bell tower.” Affidavit of Suzanne Sullivan, 4 23. “Since this news, the parishioners have not any additional updates on the work or the removal and sale of the bells.” Affidavit of Suzanne Sullivan, 24, 25, “In late August or early September of 2016, staging was erected around the bell tower. However, no work was done that was reported or that I had knowledge of, despite the staging being erected. The staging is still in place around the bell tower.” Affidavit of Suzanne Sullivan, 125. “In the Spring of 2017, I saw contractors at the Church but they would not state what work they were there to perform. But no repairs were observed being made on thebell tower.” Affidavit of Suzanne Sullivan, 26. “In July of 2017, I leamed that the CChureh was considering selling the bells. Letters were written to the Bishop and we received form letters back. I reported the news of the alleged sale to the Standard Times, which ran an article on September 5, 2017, indicating that the Diocese had used the fundraising funds for other purposes. In the article the Diocese did not state that it was selling the bells but rather that it was considering selling the bells for $72,000 ~- $40,000 ‘was for the removal and shipping of the bells with $32,000 for the actual sale of the bells.” Affidavit of Suzanne Sullivan, § 27. “[ learned from the Standard Times reporter that the bells were to be removed between November 20th and 22nd of this year.” Affidavit of Suzanne Sullivan, § 28. 29. “This past ‘Tuesday, November 14th, I was driving by the Church and saw a fellow parishioners on the street near the Church. He then proceeded to show me that two bells, had already been taken down and the crane company, A-1 Crane of Fairhaven, was in the process of removing the rest of the bells. I took pictures of the bells that had been removed and have attached them as Exhibits 3, 4 and 5,” Affidavit of Suzanne Sullivan, 129. [also then went to the storage yard at A-1 Crane in Fairhaven to see the bells. The bells were packed on pallets for shipment to Verdin Bell Company in Ohio. I took pictures of the bells at A-1 Crane, some of which are attached as Exhibit 6.” Affidavit of Suzanne Sullivan, § 30. “I was told by the A-1 Crane employee working in the yard that the bells were being picked up by Verdin Bell Company on Monday, November 20, 2017.” Affidavit of Suzanne Sullivan, § 31.Standard [When asked to grant a preliminary injunction, the judge initially evaluates in combination the moving party's claim of [harm] and chance of success on the merits. If the judge is convinced that failure to issue the injunction would subject the moving party toa substantial risk of irreparable harm, the judge must then balance this risk against any similar risk or irreparable harm which granting the injunction would create for the opposing party. What matters as to each party is not the raw amount of irreparable harm the party might conceivably suffer, but rather the risk of such harm in light of the party's chance of success on the merits. Only when the balance between these risks cut in favor of the moving party may a preliminary injunction properly issue." Since the goal is to minimize the risk of irreparable harm, if the moving party can demonstrate both that the requested relief is necessary to prevent irreparable harm to it and that granting the injunction poses no substantial risk of such harm to the opposing party, a substantial possibly of success on the merits warrants issuing the injunction." Akoury v, Roman Catholic Archbishop of Bos., 18 Mass. L. Rep. 271 (2004) citing Packaging Ind. Group, Inc., supra at 617, n.12. ‘The Potential Harm to the Plaintiff is Great Based on the attached affidavits and photographs, the bells have been removed from the Church and are being packaged by A-1 Crane for pick-up by the defendants Verdin. The pictures show the bells being removed and the fact that they are at A-1 Crane on pallets, ‘The bells are scheduled to be shipped on Monday. Once the bells leave the State they will be outside the jurisdiction of the Court and will, for all practical purposes, beitretrievable and may also be damages or sold. Accordingly, the harm to the plaintiff tips inher favor. ‘The Plaintiff Has A Substantial Likelihood of Success on the Merits While a church entity is generally protected by the First Amendment, that protection does not apply where neutral principles of law apply to the dispute. The SC has stated the following: ‘The Bishop is correct when he states that, if we considered the present dispute only in terms of the traditional structural approach, we would not take jurisdiction. This is so because (1) the Roman Catholic Church is hierarchical and (2) it maintains an internal system of tribunals for resolution of disputes. Such facts were presented in a sworn aflidavit of the Bishop which was appended to his motion for summary judgment. See also Wheeler, supra at 62. If taking jurisdiction is proper, then, it must be so under the neutral principles of law approach. Thus, we must be able to resolve the dispute without entangling ourselves in questions of religious doctrine, polity, and practice, and rely instead on objective, well-established concepts of trust and property law. See Jones v. Wolf, supra at 604. In the circumstances of this case, we believe the question of ownership properly may be resolved under such principles, and hence we need not determine whether the traditional approach of Massachusetts cases distinguishing the treatment of disputes in congregational and hierarchical churches need be applied. Fortin v. Roman Catholic Bishop, 416 Mass. 781, 787-88, 625 N.E.2d 1352, 1356-57 (1994). Moreover, the SIC stated: Under Massachusetts law, a court will declare a party a constructive trustee of property for the benefit of another if he acquired the property through fraud, mistake, breach of duty, or in other circumstances indicating that he would be unjustly enriched. Nessralla v. Peck, 403 Mass. 757, 762-763, 532 N.E.2d 685 (1989). The plaintiffs have presented no evidence of wrongdoing or unjust enrichment Fortin v. Roman Catholic Bishop, 416 Mass. 781, 789-90, 625 N.E.2d 1352, 1357-58 (1994). Unlike the plaintiff in Fortin, the plaintiff here has alleged sufficient facts to establish fraud and/or wrongdoing against the Diocese. The Diocese specifically solicited and obtained over $360,000 in donations to repair the bell tower. It removed those fundsfrom the accounts created and segregated to maintain them and moved them into its general fund. It then subverted and intentionally ignored the express intent to the donors by moving to sell the bells, which were are an essential aspect of the bell tower restoration. Moreover, the Diocese’s actions with respect to Verdin also demonstrate wrongdoing. The bells were sold for $32,000 — an incredibly low figure given their anticipated value. The Balance of Harms Favors the Plaintiff The bells have been in New Bedford and mounted at the Church since 1888 - 129 years, The bell tower and the bells are an iconic symbol of New Bedford and have great cultural and historical value to the City. Issuing an order which keeps the bells in the City for an addi mnal ten (10) days prior to a hearing will not harm the defendants, Should the injunction issue, Verdin can be contacted to cancel the pick-up of the bells so as not to incur shipping fees on Monday. ‘Conclusion For the above stated reasons, the plaintiff requests the following injunction: “It is hereby ordered that the bells removed from the Saint Lawrence Church and currently in the possession of A-I Crane at 86 Middle Street, Fairhaven, MA be preserved at their current location and not shipped or otherwise transported to any location until further order of this Court.” PHILLIPS & GARCIA, P.C. 13 Ventura Drive Dartmouth, MA 02747 508-998-0800508-998-0919 (fix) cephillips@phillipsgarcia.com =