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06/28/95 ANDREW RIZZUTO v. THEODORE J. REMATT

June 28, 1995

ANDREW RIZZUTO, ANGELINE RIZZUTO, AUGUST PASTORELLO, CONSENTINO CIPOLLA, ROSE ACCURSO AND GUY HARTFORD, INDIVIDUALLY AND AS THE PARISHIONERS AND SUPPORTERS OF THE CORPORATION OF THE NORTH AMERICAN OLD ROMAN CATHOLIC CHURCH, ET AL., PLAINTIFFS-APPELLANTS,
v.
THEODORE J. REMATT, INDIVIDUALLY AND AS BISHOP, TRUSTEE AND PRESIDENT OF THE CORPORATION OF THE NORTH AMERICAN OLD ROMAN CATHOLIC CHURCH AND ITS MINISTRIES, DEFENDANTS-APPELLEES.



APPEAL FROM THE CIRCUIT COURT OF COOK COUNTY. HONORABLE ARTHUR DUNNE, JUDGE PRESIDING.

The Honorable Justice Rizzi delivered the opinion of the court: Greiman, P.j., and Cerda, J., concur.

The opinion of the court was delivered by: Rizzi

JUSTICE RIZZI delivered the opinion of the court:

Plaintiffs, Andrew Rizzuto, Angeline Rizzuto, August Pastorello, Consentino Cipolla, Rose Accurso and Guy Hartford brought an action seeking injunctive relief, a constructive trust and an accounting against defendant Theodore J. Rematt, individually and as Bishop and Trustee of the North American Old Roman Catholic Church and its Ministries (the Church). The trial court denied plaintiffs' motion for substitution of judge, denied plaintiffs' requests for injunctive relief, a constructive trust and an accounting, and dismissed plaintiffs' First Amended Complaint (Complaint). We affirm.

The six plaintiffs are parishioners, supporters and beneficiaries of the Church. In their Complaint, plaintiffs allege that (1) prior to Rematt becoming Trustee of the Church it generated sufficient income to meet expenses and was without mortgages or significant debt; (2) after his succession to Trustee, Rematt, solely, made a decision to increase the funds needed to initiate the building of a new church structure; (3) Rematt made a $300,000 mortgage on the real property assets of the Church Trust without approval of the Board consisting of the parishioners and supporters; (4) Rematt provided financial reports to the plaintiffs, but the reports were not drafted according to the American Certified Public Accountant Standards nor any other accounting standard which accurately indicate the amount of funds raised by the parishioners; (5) Rematt has refused to provide plaintiffs with an accounting of the assets of the Church Trust although many requests have been made; (6) on information and belief, Rematt has administered the Church Trust in a manner so that he has received substantial sums of money to fund his personal activities and expenses; and (7) Rematt has breached his fiduciary duty owed to plaintiffs as beneficiaries of the Church Trust.

In view of the allegations of the Complaint, a brief history of the Church is warranted. The Church is a Catholic church of Christian denomination, but is not part of or affiliated with the more well-known Roman Catholic Church. It was incorporated in Illinois in 1919 when its charter was filed pursuant to the Religious Corporation Act of Illinois (805 ILCS 110/35 (West 1992)).

On May 2, 1919, the Church members, representatives and beneficiaries, and its Trustee and Archbishop executed a trust agreement entitled Common Law Trust (Trust), which was filed with the Secretary of State of Illinois on May 19, 1919. Apparently, the Trust agreement was filed with the Secretary of State's office as an accompaniment to the corporate charter. Since 1919, the Church has operated pursuant to its corporate charter, and all its property is held pursuant to and in accordance with the Trust.

In accordance with its charter, the Church is a hierarchical entity headed by a single individual, who is the sole Trustee of the Church and is known as the Archbishop. Rematt is presently the duly appointed and presiding Trustee and Archbishop. He is a Successor Trustee and Archbishop from a line of successors to the original Trustee and Archbishop, Giuseppe Maria Abbate.

None of the aforementioned facts are disputed or challenged by plaintiffs. Indeed, the Trust agreement, evidencing its filing with the Secretary of State's office on May 19, 1919, is attached as an exhibit to the Complaint, and plaintiffs allege in their pleading that all Church property has been and is owned and held exclusively under and pursuant to the Trust agreement. Moreover, plaintiffs allege in the Complaint: "The named Plaintiffs as Parishioners and Supporters are beneficiaries of said Common Law Trust, made the second day of May, 1919."

Specifically, the Trust provides:

The Members of the Congregation, wherever residing *** and all other persons who may become members of said Congregation, or of any other Congregation hereafter to be organized hereinabove named, as Beneficiaries, represented by their Committee appointed for this purpose *** and Giuseppe M. Abbate of said Chicago, Illinois, as sole Trustee, and hereinafter designated as Trustee, WITNESSETH:

WHEREAS, the said Members of said Congregation *** so represented by the said Committee as aforesaid, convey, assign and deliver, and concurrently herewith have and do transfer, convey, assign and deliver to the said Giuseppe M. Abbate, as sole Trustee, certain personal property rights and interests described as follows:

All rights of organization of use of name, use of form of worship, publication and promulgation, all property tangible and intangible, now belonging to, or that may hereafter be acquired by said Church, etc., and property which may have been received, or which may hereafter be received by the said Trustee for the purposes of this Trust. The Trustee has agreed and hereby does agree to issue to ...


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