Tharp v. Hillcrest Baptist Church of Columbus

[Cite as Tharp v. Hillcrest Baptist Church of Columbus, 2022-Ohio-4695.]

IN THE COURT OF APPEALS OF OHIO

TENTH APPELLATE DISTRICT

Kevin Tharp, :

Plaintiff-Appellant, : No. 22AP-231

(C.P.C. No. 21CV-1678)

v. :

(REGULAR CALENDAR)

Hillcrest Baptist Church of Columbus, :

Ohio et al.,

:

Defendants-Appellees.

:

D E C I S I O N

Rendered on December 27, 2022

On brief: Butler, Cincione & DiCuccio, N. Gerald DiCuccio;

Katz, Pryor & DiCuccio, LLP, and Robert K. DiCuccio, for

appellant. Argued: Robert K. DiCuccio.

On brief: Reminger Co., L.P.A., and Melvin J. Davis, for

appellees. Argued: Melvin J. Davis.

APPEAL from the Franklin County Court of Common Pleas

McGRATH, J.

{¶ 1} This is an appeal by plaintiff-appellant, Kevin Tharp, from a decision and

entry of the Franklin County Court of Common Pleas, entering judgment in favor of

defendants-appellees Hillcrest Baptist Church of Columbus, Ohio (individually "Hillcrest

Baptist" or "the church") and Timothy W. Lee (individually "Pastor Lee") after granting

appellees' motion for summary judgment and partial motion for judgment on the

pleadings.

{¶ 2} On August 22, 2018, appellant filed a complaint in Franklin C.P. No. 18CV-

7172 naming as defendants Hillcrest Baptist, Pastor Lee, and Larry Roach. On July 31,

2020, appellant voluntarily dismissed that action.

No. 22AP-231 2

{¶ 3} On March 17, 2021, appellant refiled a complaint against Hillcrest Baptist and

Pastor Lee. On April 14, 2021, appellant filed an amended complaint, alleging causes of

action for defamation, libel, slander, false-light invasion of privacy, invasion of privacy,

breach of confidentiality, negligence, intentional infliction of emotional distress, clergy

malpractice, declaratory judgment, breach of contract, and breach of fiduciary duties. On

April 26, 2021, Hillcrest Baptist and Pastor Lee (collectively "appellees") filed a partial

motion for judgment on the pleadings. On May 10, 2021, appellant filed a memorandum

contra. On September 17, 2021, the trial court filed a decision and entry granting appellees'

partial motion for judgment on the pleadings, thereby dismissing appellant's claims for

declaratory judgment, breach of contract, and breach of fiduciary duties.

{¶ 4} On September 27, 2021, appellees filed a motion for summary judgment as

to appellant's remaining claims. On October 25, 2021, appellant filed a memorandum in

opposition. On April 4, 2022, the trial court filed a decision and entry granting appellees'

motion for summary judgment.

{¶ 5} The following background facts are taken primarily from the decision of the

trial court granting summary judgment in favor of appellees. According to the allegations

in appellant's amended complaint, "on August 21, 2017, * * * Pastor Lee, a reverend with

the Church, held a private conference where '[Pastor] Lee asked [appellant] about a past

encounter that occurred with another Hillcrest Baptist Church congregant over thirty years

ago.' " (Apr. 4, 2022 Decision at 3.) The meeting was prompted because a current attendee

of the church, "now an adult, had recently recognized [appellant] as the man that sexually

molested him when he was fifteen years old." Although appellant's complaint "blandly

describes this sexual abuse as 'a past encounter,' [appellant] admitted in discovery to a

pattern of sexually abusing young boys." (Apr. 4, 2022 Decision at 3-4.)

{¶ 6} During his deposition testimony, appellant "admitted having previously

molested the then-teen." Specifically, appellant testified he touched this individual in the

"[g]roin area," and acknowledged that he touched this individual's penis. According to

appellant's deposition, this was not "the only minor that [appellant] abused." (Apr. 4, 2022

Decision at 4.)

{¶ 7} In its summary judgment decision, the trial court cited the following portion

of appellant's deposition testimony:

Q. How many minors did you touch?

No. 22AP-231 3

A. You'll have to ask that a different way.

Q. No, I don't think I do.

A. I can't answer that then.

Q. Do you know how many minors you touched in the groin

area?

A. I know, yes.

Q. All right. Then I'm asking you to tell me.

A. Four knew it.

Q. There were some you touched while they were asleep?

A. Yes.

Q. How many did you touch while they were asleep?

A. I don't remember. I don't remember.

Q. Was it more than five?

A. I don't remember.

(Apr. 4, 2022 Decision at 4, quoting Appellant's Depo. at 19-20.)

{¶ 8} The trial court found appellant's "description of this abuse was both candid

and unapologetic." (Apr. 4, 2022 Decision at 4.) In response to an inquiry as to why he

waited until the individuals were asleep to touch them, appellant responded: "It's the only

way I could risk it without being rejected. I had very low self-esteem." (Apr. 4, 2022

Decision at 4, quoting Appellant's Depo. at 26.)

{¶ 9} The trial court found that "[d]espite admitting to sexually abusing minors

while they slept," appellant "took exception to characterizing that conduct as molestation."

When asked during his deposition if he considered his conduct "to be molestation,"

appellant responded "[n]o," stating there was "no sexual intent." Appellant characterized

his intent as "[s]howing affection." (Apr. 4, 2022 Decision at 5, quoting Appellant's Depo.

at 23.) When asked why he touched the groin area, appellant stated: "Most pleasurable part

No. 22AP-231 4

for a person of the male species." (Apr. 4, 2022 Decision at 5, quoting Appellant's Depo. at

24.)

{¶ 10} After confronting appellant "with this history, Pastor Lee held an emergency

meeting at the Church to discuss [appellant's] admitted history of sexual abuse." During

that meeting, "Pastor Lee informed the congregation that he'd consulted with professionals

at Netcare, who opined in turn that [appellant] had an incurable disease, and that his

conduct at the Church amounted to grooming children." (Apr. 4, 2022 Decision at 5.)

{¶ 11} In its summary judgment decision, the trial court also cited the following

portion of the deposition testimony of Marc Cooper, a member of Hillcrest Baptist:

Q. Did [Pastor Lee] ever say that [appellant] had an incurable

disease?

A. He did not say that. He said that he had talked to

professionals that said that it was an incurable disease.

***

Q. Did he say that [appellant] was grooming children? And

when I say "grooming," do you know what I mean?

A. (Indicates affirmatively.)

Q. Did he say that?

A. Again, he said professionals told him that that's what

[appellant] was doing.

(Apr. 4, 2022 Decision at 5, quoting Cooper Depo. at 21.)

{¶ 12} In granting appellees' partial motion for judgment on the pleadings, the trial

court determined it lacked subject-matter jurisdiction, under the ecclesiastical abstention

doctrine, over appellant's claims for declaratory judgment, breach of contract, and breach

of fiduciary duty. In its summary judgment decision, the trial court determined appellees

were entitled to summary judgment on the remaining claims on the grounds: (1) truth is an

absolute defense to the claims, (2) the statements at issue constituted statements of

opinion, and (3) Pastor Lee had a qualified privilege to protect members of the

congregation.

No. 22AP-231 5

{¶ 13} On appeal, appellant sets forth the following two assignments of error for this

court's review:

I. THE TRIAL COURT ERRED TO THE PREJUDICE OF

PLAINTIFF IN GRANTING DEFENDANTS' MOTION FOR

JUDGMENT ON THE PLEADINGS.

II. THE TRIAL COURT ERRED TO THE PREJUDICE OF

PLAINTIFF IN GRANTING DEFENDANTS' MOTION FOR

SUMMARY JUDGMENT AS PLAINTIFF PRESENTED

GENUINE ISSUES OF MATERIAL FACT NECESSITATING

TRIAL.

{¶ 14} Under his first assignment of error, appellant asserts the trial court erred in

granting appellees' partial motion for judgment on the pleadings. Specifically, appellant

argues the trial court erred in granting the motion based on the ecclesiastical abstention

doctrine.

{¶ 15} An appeal of a decision "granting a motion for judgment on the pleadings

under Civ.R. 12(C) raises only questions of law," and "the standard for appellate review is

de novo." Lytal v. Crawl for Cancer, Inc., 10th Dist. No. 17AP-771, 2018-Ohio-2017, ¶ 7.

Civ.R. 12(C) permits "any party to move for judgment on the pleadings after the time for

pleading has closed." Id. at ¶ 8. Dismissal under Civ.R. 12(C) " 'is appropriate where a court

(1) construes the material allegations in the complaint, with all reasonable inferences to be

drawn therefrom, in favor of the nonmoving party as true, and (2) finds beyond doubt, that

the plaintiff could prove no set of facts in support of his claim that would entitle him to

relief.' " Id., citing Lin v. Gatehouse Constr. Co., 84 Ohio App.3d 96, 99 (8th Dist.1992).

{¶ 16} As noted, the trial court determined it lacked subject-matter jurisdiction over

several of appellant's claims based on the ecclesiastical abstention doctrine. Insofar as the

trial court determined "it did not have jurisdiction of claims that involved purely

ecclesiastical matters, our review is also de novo." Zhelezny v. Olesh, 10th Dist. No. 12AP-

681, 2013-Ohio-4337, ¶ 10, citing Crosby-Edwards v. Ohio Bd. of Embalmers & Funeral

Dirs., 175 Ohio App.3d 213, 2008-Ohio-762, ¶ 21 (10th Dist.). Further, "when a trial court

determines its subject-matter jurisdiction, it is not confined to the allegations of the

complaint and it may consider any pertinent evidentiary materials in ruling upon a motion

to dismiss." Id., citing Nemazee v. Mt. Sinai Med. Ctr., 56 Ohio St.3d 109, 110 (1990);

Southgate Dev. Corp. v. Columbia Gas Transmission Corp., 48 Ohio St.2d 211 (1976).

No. 22AP-231 6

{¶ 17} It is well-settled that " 'civil courts lack jurisdiction to hear or determine

purely ecclesiastical or spiritual disputes of a church or religious organization,' " otherwise

" 'known as the ecclesiastical abstention doctrine.' " Mt. Pilgrim Baptist Church, Inc. v.

Bishop, 6th Dist. No. L-14-1206, 2015-Ohio-5161, ¶ 36, quoting Tibbs v. Kendrick, 93 Ohio

App.3d 35, 41 (8th Dist.1994). This principle reflects the recognition that " '[a]ll who unite

themselves to such a body [* * * i.e. the church] do so with an implied consent to [its]

government, and are bound to submit to it. * * * It is of the essence of these religious unions,

and of their right to establish tribunals for the decision of questions arising among

themselves, that those decisions should be binding in all cases of ecclesiastical cognizance,

subject only to such appeals as the organism itself provides for.' " Plough v. Lavelle, 170

Ohio App.3d 720, 2006-Ohio-6200, ¶ 16 (11th Dist.), quoting Watson v. Jones, 80 U.S. 679,

729 (1871).

{¶ 18} Ohio appellate courts, in summarizing principles derived from "a long line of

United States Supreme Court precedent dating back to 1871, have articulated the

ecclesiastical abstention doctrine as a two-part test used to determine whether a court has

subject matter jurisdiction over a church dispute." Mt. Pilgrim Baptist Church at ¶ 37.

Under "the first step, courts must determine whether the organization is hierarchical or

congregational." Id., citing Bhatti v. Singh, 148 Ohio App.3d 386, 2002-Ohio-3348, ¶ 25

(12th Dist.). In this respect, " '[a] hierarchical polity exists when "the religious congregation

* * * is but a subordinate member of some general church organization in which there are

superior ecclesiastical tribunals with a general and ultimate power of control more or less

complete, in some supreme judicatory over the whole membership of that general

organization." ' " Id., quoting State ex rel. Morrow v. Hill, 51 Ohio St.2d 74, 76 (1977),

quoting Watson at 722-23. On the other hand, "a congregational polity exists where a

religious congregation 'is strictly independent of other ecclesiastical associations, and so far

as church government is concerned, owes no fealty or obligation to any higher authority.' "

Id., quoting Watson at 722.

{¶ 19} If an organization "is congregational, then the court determines whether the

dispute is ecclesiastical or secular in nature." Id., citing Tibbs at 43. A court "maintains

jurisdiction over secular issues." Id., citing Tibbs at 42.

{¶ 20} In addressing appellees' partial motion for judgment on the pleadings, the

trial court cited allegations in appellant's amended complaint indicating that appellant and

No. 22AP-231 7

Pastor Lee, on August 21, 2017, "held a private conference where '[Pastor] Lee asked

[appellant] about a past encounter that occurred with another Hillcrest Baptist Church

congregant over thirty years ago" after "[t]he church attendee had recently recognized

[appellant] as the man who had sexually molested him as a teenager." (Sept. 17, 2021

Decision at 1-2.) Appellant "acknowledged sexually molesting the attendee when the

attendee was a minor—and, indeed, admits the same to this Court." (Sept. 17, 2021

Decision at 2.)

{¶ 21} On August 24, 2017, Pastor Lee conducted "a meeting at the church to discuss

[appellant's] admitted prior history. * * * On October 12, 2017, the Hillcrest Board of

Trustees, referred to as the 'Vision Team' at Hillcrest * * * convened a meeting and voted to

remove [appellant] from church leadership and church membership." (Sept. 17, 2021

Decision at 2.) The trial court, based on the allegations presented, granted appellees' partial

motion for judgment on the pleadings and dismissed appellant's claims for declaratory

judgment, breach of contract, and breach of fiduciary duties on the basis that it lacked

subject-matter jurisdiction over those claims pursuant to the ecclesiastical abstention

doctrine.

{¶ 22} In opposing appellees' partial motion for judgment on the pleadings,

appellant asserted the church bylaws required notice of a special business meeting, and that

the August 24, 2017 meeting in which Pastor Lee informed the church body of appellant's

past conduct with a youth was improperly conducted. Appellant thus sought a declaratory

judgment based on the purported failure of appellees to follow their internal bylaws in

revoking appellant's leadership positions and membership in the church.

{¶ 23} The trial court held, however, "[w]hether the Church acted arbitrarily and

capriciously in de-selecting [appellant's] membership and leadership * * * are

fundamentally non-justiciable questions pursuant to the ecclesiastical abstention

doctrine." (Sept. 17, 2021 Decision at 4.) In reaching that determination, the trial court

cited and discussed various provisions of the Hillcrest Baptist bylaws. Specifically, citing

Article II, Section 2 of the bylaws, providing in part that "[a]ll Officers, Vision Team

members, and Committee members shall be active members of Hillcrest Baptist Church in

good standing and not novice Christians," the trial court observed "the Bylaws * * *

expressly provide that eligibility to serve in Leadership is contingent on both Church

membership and adherence to Christian principles." (Emphasis sic.) (Sept. 17, 2021

No. 22AP-231 8

Decision at 5.) The court noted that, under Article VI, Section 2 of the church's constitution,

"Leadership's duties include 'the administration of the church and the endeavors to fulfill

the policies and procedures of the scripture and of the church as outlined in the

constitution.' " (Emphasis sic.) (Sept. 17, 2021 Decision at 5.) The court further noted that

"[c]hurch membership, in turn, is governed by Article IV, Section 2 [of the constitution],

providing that: 'Members are expected to live daily in a Christian manner as explained in

the scriptures,' " and that "[u]ltimately, Article III, Section 3 states that: 'This Church

accepts the Holy Scriptures as its authority and guide in all matters pertaining to our belief,

faith, and daily walk of life.' " (Emphasis sic.) (Sept. 17, 2021 Decision at 5.) Finally, the

trial court observed that, pursuant to Article IV, Section 3, church membership "could be

terminated upon approval of the Vision Team * * * '[b]y erasure or exclusion because of

grossly immoral and non-Christian conduct.' " (Emphasis sic.) (Sept. 17, 2021 Decision at

5.)

{¶ 24} In analyzing those internal documents of Hillcrest Baptist, the trial court held

in pertinent part:

Simply put, for the Church, internal questions of membership,

leadership, and governance are inextricably linked to their

theology.

Under those circumstances, the Court is unable to adjudicate

the presence or absence of circumstances so irreconcilable with

articles of faith as might necessitate procedural deviation from

ordinary decision-making per the internal bylaws. Nor is the

Court able to assess ultimate substantive ecclesiastical

questions regarding membership and participation. Simply

put, lacking any ability to adjudicate who can be a Church

member or Church leader, and being unable to measure what

theological weight to be given to particular faith infractions as

might require deviance from the ordinary course, the Court is

unable to assert subject matter jurisdiction over these causes of

action. And, indeed, that sort of jurisprudential-theological

impasse is the primary reason for the ecclesiastical abstention

doctrine in the first place.

(Sept. 17, 2021 Decision at 5-6.)

{¶ 25} On appeal, appellant argues he "narrowly contends" that: (1) appellees failed

to provide notice of a special business meeting conducted on or about August 24, 2017,

(2) appellees prevented appellant from attending a "Board of Trustees meeting on

No. 22AP-231 9

October 12, 2017," during which appellant was "removed from his position on the Board of

Trustees without the opportunity to defend himself," and (3) during the meeting on

October 12, 2017, a voting member of each team was not present, and an individual was

permitted to cast a vote for appellant's removal in contravention of Hillcrest Baptist's

constitution and bylaws. (Appellant's Brief at 13.)

{¶ 26} We note, at the outset, the parties in this case do not dispute that Hillcrest

Baptist is a congregational organization. In such circumstances, "this court must * * *

determine if the issues involve ecclesiastical or secular issues." Jones v. Wilson, 8th Dist.

No. 88890, 2007-Ohio-6484, ¶ 21. In this respect, "[c]ourts are * * * permitted to hear

controversies that are purely secular and require no inquiry into ecclesiastical matters."

State ex rel. First New Shiloh Baptist Church v. Meagher, 1st Dist. No. C-960371 (Apr. 16,

1997). Generally, courts may consider church disputes such as those in which "[t]he sole

issue concerns the ownership of real property." S. Ohio State Executive Offices of Church

of God v. Fairborn Church of God, 61 Ohio App.3d 526, 537 (2d Dist.1989). See also Jones

at ¶ 21 ("Where a dispute involves non-doctrinal contractual disputes, a civil court retains

jurisdiction."). However, if a court "has to inquire into church doctrine, and go beyond

completely neutral principles, then the court does not have jurisdiction to hear the dispute."

Id., citing Salzgaber v. First Christian Church, 65 Ohio App.3d 368, 372 (4th Dist.1989).

{¶ 27} Accordingly, "courts have no role in determining ecclesiastical questions in

the process of resolving property disputes," and therefore "the First Amendment

commands civil courts to decide church property disputes without resolving underlying

controversies over religious doctrine." Bennett v. Evangelical Lutheran Church in Am., S.

Ohio SNYOD, 97 Ohio App.3d 786, 789 (10th Dist.1994). See also Turner v. Tri-Cty.

Baptist Church of Cincinnati, 12th Dist. No. CA2018-03-050, 2018-Ohio-4658, ¶ 16,

quoting Hutchison v. Thomas, 789 F.2d 392, 396 (6th Cir.1986) (noting "the 'neutral

principles' exception to the ecclesiastical abstention doctrine' applies only to cases involving

disputes over church property' * * * [and the doctrine] 'has never been extended to religious

controversies in the areas of church government, order and discipline, nor should it be' ").

Thus, matters involving "[c]hurch discipline, ecclesiastical government, or 'the conformity

of the members of the church to the standard of morals required of them' is beyond the

scope of review by a secular tribunal." Howard v. Covenant Apostolic Church, Inc., 124

Ohio App.3d 24, 28-29 (1st Dist.1997), quoting Watson at 728-29.

No. 22AP-231 10

{¶ 28} In cases requiring inquiry as to whether a pastor "had been engaged in

wrongdoing," and "the heart of the inquiry would be whether or not the pastor should be

removed," such considerations implicate "an ecclesiastical issue" for which a trial court

lacks subject-matter jurisdiction. Robinson v. Freedom Faith Missionary Baptist Church,

2d Dist. No. 20232, 2004-Ohio-2607, ¶ 28. See also Meagher (an inquiry into church

finances to determine whether a pastor "engaged in wrongdoing, rendering him unqualified

as a pastor, and whether he should be removed for misconduct," would require "[d]elving

into the need or reason for disciplinary action," necessarily requiring a court to "review

ecclesiastical matters"). Similarly, Ohio courts have held "congregational * * * churches are

free from secular court scrutiny of their internal practices and discipline regarding the

membership of the congregation." Howard at 28, citing First Baptist Church of Glen Este

v. State, 591 F.Supp. 676 (S.D.Ohio 1983); Alexander v. Shiloh Baptist Church, 62 Ohio

Misc.2d 79 (1991).

{¶ 29} In asserting the trial court erred in holding it lacked subject-matter

jurisdiction over his claims for declaratory judgment, breach of contract, and breach of

fiduciary duty, appellant characterizes the underlying dispute as simply a secular one

between a corporate member of a board and the corporation, and "merely contends"

appellees failed to follow their own constitution and bylaws. (Appellant's Brief at 17.)

{¶ 30} Appellant's argument, however, ignores the broader issue (recognized by the

trial court) that the underlying dispute involves appellant's removal from church

membership based on disciplinary action taken by the church after appellant

"acknowledged sexually molesting" a current church attendee when "the attendee was a

minor." (Sept. 17, 2021 Decision at 2.) In support of its decision, the trial court relied in

part on Adkison v. Williams, 5th Dist. No. 18 CA 119, 2019-Ohio-4289, a decision we also

find instructive.

{¶ 31} Under the facts of Adkison, the appellants, 31 current or former members of

a church, alleged they were "notified by leaders of the congregation that they were no longer

considered church members, and that these decisions were not made in accordance with

the congregational by-laws." Id. at ¶ 3. The appellants brought causes of action for

declaratory judgment, breach of fiduciary duty, breach of contract, and intentional

infliction of emotional distress. The appellees, which included the church, the church

pastor, and several trustees, filed a motion to dismiss for lack of subject-matter jurisdiction

No. 22AP-231 11

pursuant to Civ.R. 12(B)(1). The trial court granted the motion based on lack of subject-

matter jurisdiction.

{¶ 32} On appeal, the appellants argued the trial court "erroneously applied the

ecclesiastical abstention doctrine to the question before it of appellants' church

membership removal." Id. at ¶ 19. The court in Adkison rejected that argument, holding

in part:

[A]s much as appellants in this instance seek to couch this

dispute as a straightforward question regarding the bylaws on

congregational voting, we are persuaded upon review that this

dispute presents a question of internal church governance. In

particular, we observe additional provisions under the Mount

Calvary Baptist Church bylaws require that the final step

regarding dismissal of membership for conduct reasons is to

have the deacon board "take it to the church," according to

Chapter 18, verses 15-17 of the Gospel of Matthew in the New

Testament. * * * This type of scriptural interpretation is clearly

outside of the ambit of a court of law pursuant to the

requirements of the First Amendment. * * * Thus, under the

circumstances before us in this matter, we hold the question of

whether appellants were wrongfully dismissed from

membership according to the written procedural mechanisms

of the church bylaws involved an ecclesiastical question that

the trial court, under Civ.R. 12(B)(1), correctly abstained from

resolving.

Id. at ¶ 21.

{¶ 33} In Howard, a case also involving a church membership dispute, the plaintiff

brought an action against the defendants (a church and several of its church officers)

alleging he was "wrongfully disfellowed" from membership in the church during a meeting

he was not permitted to attend. Howard at 28. The plaintiff in that case argued, similar to

appellant in the instant case, that because the church is "a non-profit corporation organized

under Ohio law," it "is therefore governed by the rules and regulations of the statute

requiring the corporation's adherence to its constitution and by-laws" and that, "as a

member of the Church, he has a right to sue to require the corporation to follow its by-laws."

Id. at 30. The court in Howard rejected the appellant's argument that "the trial court had

jurisdiction to determine whether his expulsion from membership was undertaken in

accordance with the Church's by-laws and procedures." Id. at 29. In reaching that

No. 22AP-231 12

determination, the court observed that "membership in the Church is not the same as

membership or trusteeship in the corporation." Id. at 30.

{¶ 34} In the present case, as outlined by the trial court in its decision granting

appellees' partial motion for judgment on the pleadings, membership requirements are set

forth in the church's bylaws and constitution. Article III, Section 3 of the constitution

provides in part that the church "accepts the Holy Scriptures as its authority and guide in

all matters pertaining to our belief, faith, and daily walk in life." Article IV, Section 2 of the

constitution addresses church membership, with corresponding sections pertaining to

qualifications, duties, and termination. With respect to duties, members "are expected to

live daily in a Christian manner as explained in the scriptures, to attend teaching and

worship services regularly and to be good stewards of their time and wealth as God has

prospered them." Upon "approval of the Vision Team, church membership can be

terminated in one of the four" specified methods, including "[b]y erasure or exclusion

because of grossly immoral and non-Christian conduct." (Article IV, Section 3 of the

Hillcrest Baptist Constitution.) Article VI, Section 2 of the constitution provides in part

that the Vision Team "is accountable to the Church body and is totally responsible for the

administration of the church and the endeavors to fulfill the policies and procedures of the

scripture and of the church as outlined in the constitution." Article II, Section 2 of the

bylaws provides: "All Officers, Vision Team members, and Committee members shall be

active members of Hillcrest Baptist Church in good standing and not novice Christians."

{¶ 35} Following the vote by the Hillcrest Baptist Vision Team to remove appellant

from membership, the Vision Team sent a letter to appellant outlining the basis for his

removal from membership. The reasons listed included: (1) "[p]urposely not telling us of

past abusive actions so that no restrictions would be on him from working and building

relationships with kids," (2) "[s]howing little signs of a repentant and broken spirit over

past actions where kid's lives were hurt and damaged through his abusive actions and

showing lack of regard to the feelings of those same victims today," and (3) "[n]ot living up

to the Hillcrest Covenant Agreement to protect the witness and reputation of Christ and

His church here at Hillcrest." (Wright and Cooper Depos., Ex. 5.)

{¶ 36} As noted, matters of "[c]hurch discipline, ecclesiastical government, or 'the

conformity of the members of the church to the standard of morals required of them' is

beyond the scope of review by a secular tribunal." Howard at 28-29, citing Watson at 28-

No. 22AP-231 13

29. Stated otherwise, "secular courts will not inquire into whether disfellowship or

expulsion from church membership was in accordance with church by-laws or regulations."

Id. at 29.

{¶ 37} Upon review, we find no error with the trial court's determination that, based

on the allegations presented, it was "unable to adjudicate the presence or absence of

circumstances so irreconcilable with articles of faith as might necessitate procedural

deviation from ordinary decision-making per the internal bylaws," nor would it be able,

under neutral principles of law, to "assess ultimate substantive ecclesiastical questions

regarding membership and participation." As recognized by the trial court, the instant

dispute, involving questions as to the propriety of church discipline and the "theological

weight to be given to particular faith infractions," would necessarily require the review of

ecclesiastical matters over which the court lacked subject-matter jurisdiction. (Sept. 17,

2021 Decision at 5.)

{¶ 38} Accordingly, based on this court's de novo review, the trial court did not err

in holding it lacked subject-matter jurisdiction over appellant's claims for declaratory

judgment, breach of contract, and breach of fiduciary duty. Appellant's first assignment of

error is not well-taken and is overruled.

{¶ 39} Under his second assignment of error, appellant asserts the trial court erred

in granting summary judgment in favor of appellees as to his remaining claims for

defamation, invasion of privacy, breach of confidentiality, negligence, intentional infliction

of emotional distress, and clergy malpractice.

{¶ 40} In accordance with the provisions of Civ.R. 56(C), a trial court shall grant

summary judgment if the filings in the action, including the pleadings and affidavits, "show

that there is no genuine issue as to any material fact and that the moving party is entitled

to judgment as a matter of law." Bonacorsi v. Wheeling & Lake Erie Ry. Co., 95 Ohio St.3d

314, 2002-Ohio-2220, ¶ 24. This court's review of a trial court's decision on summary

judgment is "de novo." Id.

{¶ 41} Appellant first contends he presented the trial court with genuine issues of

material fact as to his claim for defamation. In support, appellant argues Cooper, a 40-year

member of Hillcrest Baptist, provided deposition testimony that, during the church

meeting on August 24, 2017, Pastor Lee related he had spoken with unnamed professionals

who indicated appellant had an "incurable disease," and that these professionals told him

No. 22AP-231 14

appellant was "grooming children." (Appellant's Brief at 32.) Appellant maintains these

statements are false, and that there is no evidence he has an incurable disease.

{¶ 42} Appellant's amended complaint included claims for defamation, libel,

slander, and false-light invasion of privacy. Because those claims are interrelated, we will

consider them together. In general, "[d]efamation, which includes both slander and libel,

is the publication of a false statement ' "made with some degree of fault, reflecting

injuriously on a person's reputation, or exposing a person to public hatred, contempt,

ridicule, shame or disgrace, or affecting a person adversely in his or her trade, business or

profession." ' " Savoy v. Univ. of Akron, 10th Dist. No. 13AP-696, 2014-Ohio-3043, ¶ 17,

quoting Jackson v. Columbus, 117 Ohio St.3d 328, 2008-Ohio-1041, ¶ 9, quoting A & B-

Abell Elevator Co. v. Columbus/Cent. Ohio Bldg. & Constr. Trades Council, 73 Ohio St.3d

1, 7 (1995). The term " '[s]lander' refers to spoken defamatory words, while 'libel' refers to

written or printed defamatory words." Id., citing Matikas v. Univ. of Dayton, 152 Ohio

App.3d 514, 2003-Ohio-1852, ¶ 27 (2d Dist.).

{¶ 43} In order to "prevail on a defamation claim, whether libel or slander, a plaintiff

must prove the following elements: (1) a false statement, (2) about the plaintiff, (3) was

published without privilege to a third party, (4) with fault or at least negligence on the part

of the defendant, and (5) the statement was either defamatory per se or caused special harm

to the plaintiff." Id. at ¶ 18, citing Schmidt v. Northcoast Behavioral Healthcare, 10th Dist.

No. 10AP-565, 2011-Ohio-777, ¶ 8, citing McPeek v. Leetonia Italian-Am. Club, 174 Ohio

App.3d 380, 2007-Ohio-7218, ¶ 8 (7th Dist.). Under Ohio law, "[s]ubstantial truth is a

complete defense to defamation." Dudee v. Philpot, 1st Dist. No. C-180280, 2019-Ohio-

3939, ¶ 11. Further, "[e]xpressions of opinion are generally protected under Ohio law."

Byrne v. Univ. Hosps., 8th Dist. No. 95971, 2011-Ohio-4110, ¶ 12.

{¶ 44} Although "related, false light and defamation are different causes of action."

Dudee at ¶ 82. A claim for false-light invasion of privacy occurs when "[o]ne who gives

publicity to a matter concerning another that places the other before the public in a false

light is subject to liability to the other for invasion of privacy if (a) the false light in which

the other was placed would be highly offensive to a reasonable person and (b) the actor had

knowledge of or acted in reckless disregard as to the falsity of the publicized matter and the

false light in which the other would be placed." Welling v. Weinfeld, 113 Ohio St.3d 464,

2007-Ohio-2451, syllabus.

No. 22AP-231 15

{¶ 45} The primary distinction between defamation and false-light is "the

information at issue must be 'publicized' which is different than 'published.' " Dickinson v.

Spieldenner, 6th Dist. No. L-16-1041, 2017-Ohio-667, ¶ 29, quoting Welling at ¶ 52. Stated

otherwise, "the information is disseminated to 'the public at large, or to so many persons

that the matter must be substantially certain to become public knowledge.' " Id., quoting

Welling at ¶ 53. Further, "false-light invasion of privacy defendants are afforded at least as

much protection as defamation defendants." Id. at ¶ 30. Accordingly, "the defense of

qualified privilege may apply," and "the same reasons that necessitate the dismissal of a

defamation claim may support the dismissal of a false-light claim." Id.

{¶ 46} Under Ohio law, "[t]he elements of qualified privilege are: '[A] defendant

must establish that (1) he acted in good faith; (2) there was an interest to be upheld; (3) the

statement was limited in its scope to the purpose of upholding that interest; (4) the occasion

was proper; and (5) the publication was made in a proper manner and only to proper

parties.' " Janiszewski v. Belmont Career Ctr., 7th Dist. No. 16 BE 0009, 2017-Ohio-855,

¶ 85, quoting Mosley v. Evans, 90 Ohio App.3d 633, 636 (11th Dist.1993). Further, "[a]

qualified privilege may be defeated only by clear and convincing evidence of actual malice

on the part of the defendant." Id. at ¶ 86, citing Jacobs v. Frank, 60 Ohio St.3d 111, 114-15

(1991).

{¶ 47} In McCartney v. Oblates of St. Francis deSales, 80 Ohio App.3d 345, 354-55

(6th Dist.1992), the court discussed, in the context of a defamation action, the defense of

qualified privilege, holding in relevant part:

Even in cases where a plaintiff has established a prima facie

case of defamation, a defendant may invoke the defense of

qualified privilege. Hahn v. Kotten (1975), 43 Ohio St.2d 237,

243 * * *. A publication is privileged when it is " 'fairly made by

a person in the discharge of some public or private duty,

whether legal or moral, or in the conduct of his own affairs, in

matters where his interest is concerned.' " As stated by the

Hahn court, a publication is:

"* * * conditionally or qualified privileged where circumstances

exist, or are reasonably believed by the defendant to exist,

which cast on him the duty of making a communication to a

certain other person to whom he makes such communication

in the performance of such duty, or where the person is so

situated that it becomes right in the interests of society that he

should tell third persons certain facts, which he in good faith

No. 22AP-231 16

proceeds to do. This general idea has been otherwise expressed

as follows: A communication made in good faith on any subject

matter in which the person communicating has an interest, or

in reference to which he has a duty, is privileged if made to a

person having a corresponding interest or duty, even though it

contains matter which, without this privilege, would be

actionable, and although the duty is not a legal one, but only a

moral or social duty of imperfect obligation. The essential

elements of a conditionally privileged communication may

accordingly be enumerated as good faith, an interest to be

upheld, a statement limited in its scope to this purpose, a

proper occasion, and publication in a proper manner and to

proper parties only. The privilege arises from the necessity of

full and unrestricted communication concerning a matter in

which the parties have an interest or duty, and is not restricted

within any narrow limits."

(Citations omitted.)

{¶ 48} In the present case, the relevant and largely undisputed facts as set forth in

the trial court's summary judgment decision (and outlined above) indicate appellant and

Pastor Lee held a private conference on August 21, 2017, at which time Pastor Lee

questioned appellant about " 'a past encounter that occurred with another Hillcrest Baptist

Church congregant over thirty years ago.' " The church attendee, "now an adult, had

recently recognized [appellant] as the man that sexually molested him when he was fifteen

years old." (Apr. 4, 2022 Decision at 3.) Appellant "admitted in discovery to a pattern of

sexually abusing young boys," and he "admitted having previously molested the then-teen"

congregant. Appellant also acknowledged in his deposition that this congregant was not

"the only minor" he had touched inappropriately. (Apr. 4, 2022 Decision at 4.) Despite

acknowledging his conduct with "minors while they slept," appellant "took exception to

characterizing that conduct as molestation." (Apr. 4, 2022 Decision at 5.)

{¶ 49} After confronting appellant as to this history, "Pastor Lee held an emergency

meeting at the Church to discuss [appellant's] admitted history of sexual abuse." Pastor

Lee informed members of the congregation "that he'd consulted with professionals at

Netcare, who opined in turn that [appellant] had an incurable disease, and that his conduct

at the Church amounted to grooming children." (Apr. 4, 2022 Decision at 5.)

{¶ 50} The trial court found, even assuming appellant could demonstrate the

statements at issue were defamatory, they were made pursuant to a qualified privilege. In

No. 22AP-231 17

finding that appellees were protected by a qualified privilege, the trial court noted the

summary judgment evidence indicated that "Pastor Lee, as the leader of his congregation,

brought [appellant's] admissions to Church Leadership and the parents of children who

had interactions with [appellant]." The trial court held in part: "Clearly, Pastor Lee had a

duty to make this disclosure in order to protect the members of his congregation. This is

especially true given the fact that the individual who recognized [appellant] was concerned

that [appellant] was engaging in the same grooming behaviors with the children of the

congregation that he had experienced when he was a teenager." The trial court further

found "Pastor Lee did not share [appellant's] prior misconduct of abusing children beyond

those who had a legitimate interest in knowing." Finally, the trial court addressed the issue

of malice, finding "there is no record evidence that Pastor Lee's statements were made with

either knowledge that the statements were false or reckless disregard as to their truth or

falsity." (Apr. 4, 2022 Decision at 10.)

{¶ 51} Ohio courts have considered the issue of a qualified privilege defense to a

defamation claim in instances where parties share a common interest in the well-being of

minors. See McCartney at 356 (qualified privilege existed as a matter of law with respect

to school principal's statements to parents of students who had been interacting with the

plaintiff-teacher that the plaintiff had been convicted of "corrupting a minor" because, "[a]s

a matter of public policy, educators and parents share a common interest in the training,

morality and well-being of the children in their care" and, as a result of this shared interest,

a relationship exists "in which a right, and in many instances a duty, to communicate

information * * * arises"). Ohio courts have also recognized the existence of a qualified

privilege as to "church interests." See Mosley at 637 (church deacons entitled to defense of

qualified privilege regarding letter distributed to church congregation concerning "various

church interests" and expressing deacons' belief that reverend's health problems prevented

him from performing his duties effectively); Austin v. Peterson, 9th Dist. No. 2735-M

(Jan. 13, 1999), citing Baker v. Spinning Rd. Baptist Church, Inc., 2d Dist. No. 17052

(Sept. 11, 1988) ("church members have an interest in the actions taken by a board

concerning an employee of the church").1

1 Restatement of the Law, Torts, § 596, comment d, states in part: "The common interest of members of

religious, fraternal, charitable or other non-profit associations, whether incorporated or unincorporated, is

recognized as sufficient to support a privilege for communications among themselves concerning the

No. 22AP-231 18

{¶ 52} Courts in other jurisdictions "have recognized a qualified privilege for

communications made in the context of church discipline." Marks v. Estate of Hartgerink,

528 N.W.2d 539, 546 (Iowa 1995) (holding it "appropriate to apply a qualified privilege to

statements made in the context of a church disciplinary proceeding"); Cargill v. Greater

Salem Baptist Church, 215 S.W.3d 63, 68 (Ky.App.2006) (applying qualified privilege to

alleged defamatory statements made by church disciplinary committee "in the course of a

church disciplinary matter"); Dillavou v. Schaffner, Minn. App. No. C7-94-362 (July 19,

1994) (even if statements were defamatory, qualified privilege covered statements made by

members of church to fellow members at church meetings regarding parishioner's

expulsion from church as such statements pertained to "matters of legitimate common

interest to the church congregation" and therefore defendants "had a qualified privilege to

publish them among themselves").

{¶ 53} It is well-settled that "[t]he purpose of a qualified privilege is to protect

speakers in circumstances where there is a need for full and unrestricted communication

concerning a matter in which the parties have an interest or duty." Austin. Stated

otherwise, "whether the interest to be upheld is sufficient depends on whether the speaker

and the listener possess a common interest in the communication." Id. Further, "[w]here

the circumstances of the occasion for the alleged defamatory communication are not in

dispute, the determination of whether there is a qualified privilege is a question of law for

the trial court." McCartney at 355.

{¶ 54} Upon review, we find no error with the trial court's determination that

"Pastor Lee had a duty to make this disclosure in order to protect the members of his

congregation" (i.e., that the statements at issue were protected as communications in which

the speaker had an interest in the subject matter and a duty to convey to the recipients

sharing a common interest in the communications). (Apr. 4, 2022 Decision at 10.) See,

e.g., Terry v. Davis Community Church, 131 Cal.App.4th 1534, 1547 (2005) (qualified

privilege attached to allegedly defamatory statements regarding child molestation during

investigation prompted by parents of a church youth group where statements occurred in

context of ongoing discussion about protection of children at church).

qualifications of the officers and members and their participation in the activities of the society. This is true

whether the defamatory matter relates to alleged misconduct of some other member which makes him

undesirable for continued membership, or the conduct of a prospective member."

No. 22AP-231 19

{¶ 55} The undisputed facts indicate that appellant, who was involved in youth

ministry at the church and was required to undergo a background check to serve in that

ministry, had not disclosed past conduct until confronted by Pastor Lee (and only after a

current congregant revealed a past incident of abuse). The alleged defamatory statements

were made in the context of church proceedings involving the church's Vision Team and

parents of teens who may have had interactions with appellant. During the meeting, Pastor

Lee informed "the parents of [appellant's] past actions so that we could see if there was any

abuse that had taken place with kids of our community." (Lee Depo. at 40.) According to

Pastor Lee, "[o]nce I learned of his past actions, I was concerned that it could have

happened." (Lee Depo. at 41.) Here, the summary judgment evidence fails to demonstrate

a genuine issue of material fact as to whether the statements at issue were made in good

faith, with a legitimate church interest to be upheld, limited in scope and made in a proper

manner to the proper parties. Based on this court's de novo review, we agree with the trial

court that, as a matter of law, the alleged defamatory statements, involving

communications between appellees and members of the congregation sharing a common

interest, were protected by a qualified privilege.

{¶ 56} Further, we agree with the trial court that the evidence on summary judgment

did not create a genuine issue of material fact as to whether appellees acted with malice.

Under Ohio law, where a defendant has a qualified privilege regarding statements, "that

privilege can be defeated only by a clear and convincing showing that the communication

was made with actual malice." Byvank v. Fidelity Orthopedic, Inc., 2d Dist. No. 17465

(May 28, 1999). In such a "qualified privilege case, 'actual malice' is defined as acting with

knowledge that the statements are false or acting with reckless disregard to their truth or

falsity." Id.

{¶ 57} However, "[i]t is not enough to prove the falsity of the statement, but a

plaintiff 'must prove with convincing clarity that defendant was aware of the high

probability of falsity.' " Id. Thus, "[t]o establish that the statements were made with

'reckless disregard,' sufficient evidence must be presented by the plaintiff to lead a court to

find that the defendant had 'serious doubts' as to the truth of the publication." Id. In this

respect, "[a] court is likely to find reckless disregard 'where a story is fabricated by the

defendant, is the product of his imagination, or is based wholly on an unverified anonymous

telephone call.' " Id., quoting St. Amant v. Thompson, 390 U.S. 727, 732 (1968). Further,

No. 22AP-231 20

"the Ohio Supreme Court has held that failure to investigate the truth of the communication

is not of itself enough to refute the qualified privilege defense, as 'mere negligence is not

enough to establish actual malice.' " Id., quoting Dale v. Ohio Civ. Serv. Emp. Assn., 57

Ohio St.3d 112, 118 (1991).

{¶ 58} As previously discussed, the statements at issue were motivated by a "church

interest," i.e., involving an underlying church discipline matter, as well as an interest in

protecting minors. Further, the statements at issue had a "factual foundation" based on

appellant's own admissions as to his past activity. See Mosley at 638 (no malice where

church deacons "did have a factual foundation for their opinion concerning the effect of

[the pastor's] health on his performance").

{¶ 59} Accordingly, as there are no genuine issues of material fact that the

statements at issue are entitled to a qualified privilege, we find no error with the trial court's

determination that appellees are entitled to judgment as a matter of law on appellant's

claims of defamation, slander, libel, and false-light invasion of privacy.

{¶ 60} Appellant further contends the trial court erred in failing to find genuine

issues of material fact as to his claims for invasion of privacy. Appellant acknowledges the

record on summary judgment indicates he disclosed his conduct to members of the church

before the congregational meeting on August 24, 2017, but maintains he only told members

of the church about his past after Pastor Lee told him he would be informing members of

the congregation what he had learned. According to appellant, he "only reached out to

members of the church after this exchange with [Pastor] Lee, as he wanted the opportunity

to defend himself." (Appellant's Brief at 40.)

{¶ 61} In order to establish a claim for invasion of privacy through publicity, a

plaintiff must prove the following elements: "(1) communication of the matter to the public

at large or to so many persons that the matter is substantially certain to become one of

public knowledge, (2) disclosure of facts concerning the individual's private life, (3) the

matter publicized must be highly offensive and objectionable to a reasonable person of

ordinary sensibilities, (4) the communication must be intentional, not negligent, and

(5) the matter publicized is not of legitimate concern to the public." Dautartas v. Abbott

Labs., 10th Dist. No. 11AP-706, 2012-Ohio-1709, ¶ 65, citing Killilea v. Sears, Roebuck &

Co., 27 Ohio App.3d 163, 166-67 (10th Dist.1985).

No. 22AP-231 21

{¶ 62} Construing the allegations most strongly in favor of the non-moving party,

we find no genuine issue of material fact as to appellant's claim for invasion of privacy. As

previously discussed, the matter communicated arose out of an internal church

investigation of an accusation involving appellant, who at the time was serving in the

church's youth ministry. Significantly, the allegations of appellant's past sexual conduct

were not unsubstantiated but rather by appellant's own admission, confirmed. The

subsequent congregational meeting, restricted to members of the Vision Team and parents

of youth, involved a discussion of that past conduct in the context of determining whether

church youth were at risk. We conclude, as a matter of law, the comments were of

legitimate concern to the members of the congregation. See, e.g., Bertsch v.

Communications Workers of Am., Local 4302, 101 Ohio App.3d 186, 193 (9th Dist.1995)

(comments regarding the plaintiff's job performance, although "not matters of general

public concern," were "matters of legitimate concern to the members of the union" and were

made to members in the context of a labor dispute and, as such, did not support an action

of invasion of privacy); Terry at 1457 ("issue as to whether or not an adult who interacts

with minors in a church youth program has engaged in an inappropriate relationship with

any of the minors is clearly a matter of public interest" based on society's interest in

protecting minors, "particularly in places such as church programs that are supposed to be

safe").

{¶ 63} Appellant next contends genuine issues of material fact remain as to his claim

for breach of confidentiality. In support, appellant cites to Biddle v. Warren Gen. Hosp.,

86 Ohio St.3d 395 (1999), paragraph one of the syllabus, in which the Supreme Court of

Ohio held that "an independent tort exists for the unauthorized, unprivileged disclosure to

a third party of nonpublic medical information that a physician or hospital has learned

within a physician-patient relationship." Appellant points to the deposition testimony of

congregant Cooper who testified that "if he ever had a meeting with his pastor in which he

confessed a past sin, he would expect confidentiality." (Appellant's Brief at 42.)

{¶ 64} While appellant appears to equate the conduct at issue to a clergy's

obligations to maintain the confidentiality of a penitent's confession, the facts on summary

judgment do not support such a characterization. Specifically, the undisputed facts do not

No. 22AP-231 22

indicate that appellant sought out Pastor Lee for counseling or to confess a past sin;2 rather,

Pastor Lee, after learning of the past conduct of appellant from a current congregant, sought

out appellant to inquire about the truth of those allegations. As noted by appellees, the

summary judgment evidence does not suggest appellant was seeking spiritual consultation,

nor did Pastor Lee provide testimony as to a confession or confidential communication

made for religious counseling. See, e.g., McFarland v. W. Congregation of Jehovah's

Witnesses, Lorain, Ohio, Inc., 9th Dist. No. 15CA010740, 2016-Ohio-5462, ¶ 13, quoting

Trammel v. United States, 445 U.S. 40, 51 (1980) (noting the clergy-penitent privilege

" 'recognizes the human need to disclose to a spiritual counselor, in total and absolute

confidence, what are believed to be flawed acts or thoughts and to receive [spiritual]

consolation and guidance in return' "). Accordingly, the trial court did not err in granting

summary judgment in favor of appellees as to appellant's claim for breach of confidentiality.

{¶ 65} Appellant also contends genuine issues of material fact remain as to his claim

for negligence. We disagree. Appellant relies again on his contention the facts implicate

the cleric-penitent privilege (i.e., concerning the confidentiality of a confession), an issue

we have addressed and rejected above. Upon review, we agree with appellees that appellant

has failed to identify a duty to maintain confidentiality under the facts of this case that

would support his claim for negligence. As also noted by appellees, the mandatory

reporting obligations of R.C. 2151.421, in fact, impose a requirement on members of the

clergy to report suspected child abuse (as illustrated in this case through the deposition

testimony of Pastor Lee who stated that, upon contacting a health services agency

(Netcare), he was informed of a mandatory reporting requirement based on the

information he had received). See, e.g., Carovac v. Lake Cty. Bd. of Dev.

Disabilities/Deepwood, N.D.Ohio No. 1:19 CV 2344 (Sept. 9 2020) (alleged defamatory

statement "protected by the mandatory reporting statutes" and entitled to qualified

privilege); Johnson v. Aultman Hosp., 5th Dist. No. 2017 CA 00145, 2018-Ohio-1268, ¶ 45

(based on "mandatory reporting requirement," the appellees had "qualified privilege" to

report the appellant's termination).

2 As found by the trial court, the record evidence indicates that appellant "took exception to characterizing

[his] conduct as molestation" or even as immoral. (Apr. 4, 2022 Decision at 5.) In response to an inquiry

whether he knew touching minors in the groin area "was wrong," appellant responded: "Did not consider it

wrong, no." (Tharp Depo. at 27.)

No. 22AP-231 23

{¶ 66} Appellant next asserts he presented the trial court with operative facts which

would allow an inference that appellees intentionally inflicted emotional distress upon him.

Appellant maintains that statements during the congregational meeting regarding an

incurable disease, based on unnamed professionals who had never interacted with him,

were meant to humiliate and embarrass him.

{¶ 67} In order to recover for a claim for intentional infliction of emotional distress,

a plaintiff is required "to show that (1) defendant intended to cause emotional distress, or

knew or should have known that actions taken would result in serious emotional distress;

(2) defendant's conduct was extreme and outrageous; (3) defendant's actions proximately

caused plaintiff's psychic injury; and (4) the mental anguish plaintiff suffered was serious."

Hanly v. Riverside Methodist Hosp., 78 Ohio App.3d 73, 82 (10th Dist.1991), citing Pyle v.

Pyle, 11 Ohio App.3d 31, 34 (8th Dist.1983).

{¶ 68} Liability as to a claim for intentional infliction of emotional distress " ' "does

not extend to mere insults, indignities, threats, annoyances, petty oppressions, or other

trivialities." ' " Moore v. Impact Community Action, 10th Dist. No. 12AP-1030, 2013-Ohio-

3215, ¶ 15, quoting Mowery v. Columbus, 10th Dist. No. 05AP-266, 2006-Ohio-1153, ¶ 49,

quoting Yeager v. Local Union 20, Teamsters, Chauffeurs, Warehousemen & Helpers of

Am., 6 Ohio St.3d 369, 375 (1983). Instead, "liability is found only where the conduct is 'so

outrageous in character, and so extreme in degree, as to go beyond all possible bounds of

decency, and to be regarded as atrocious, and utterly intolerable in a civilized community.

Generally, the case is one in which the recitation of the facts to an average member of the

community would arouse his resentment against the actor, and lead him to exclaim,

"Outrageous!" ' " Id., quoting Yeager, quoting Restatement of the Law 2d, Torts, Section

46(1) (1965) .

{¶ 69} As indicated, appellant contends he suffered emotional distress as a result of

Pastor Lee informing the congregation he had an incurable disease when the only support

for this contention was the "supposed unnamed 'professionals' who had never seen or

interacted with [appellant]." (Appellant's Brief at 47.)

{¶ 70} The record on summary judgment fails to create a genuine issue of material

fact that the conduct at issue, arising out of an internal church investigation, rose to the

level of extreme and outrageous behavior necessary to support a claim for intentional

infliction of emotional distress, nor does the record present a genuine issue of material fact

No. 22AP-231 24

as to whether appellees' intent, based on concerns pertaining to the protection of minors,

was to cause appellant emotional distress. Further, we have previously determined, as did

the trial court, that the communications at issue were protected by a qualified privilege.

See, e.g., Smith v. Ameriflora, 1992, Inc., 96 Ohio App.3d 179, 189 (10th Dist.1994) ("Ohio

courts have recognized that the qualified privilege defense is applicable to actions for

intentional infliction of emotional distress."); Gintert v. WCI Steel, Inc., 11th Dist. No.

2002-T-0124, 2007-Ohio-6737 ("When a privilege, qualified or absolute, attaches to

statements made in a defamation action, those statements remain privileged for the

purpose of derivative claims such as intentional infliction of emotional distress and tortious

interference with a business relationship.").

{¶ 71} Appellant also contends the trial court erred in granting summary judgment

as to a claim of clergy malpractice. We disagree.

{¶ 72} Clergy malpractice has been defined as "the failure to exercise the degree of

care and skill normally exercised by members of the clergy in carrying out their professional

duties." Stewart v. W. Ohio Conf. of the United Methodist Church, 10th Dist. No. 02AP-

974, 2003-Ohio-3885, ¶ 37, citing Byrd v. Faber, 57 Ohio St.3d 56, 57 (1991). The Supreme

Court has held that "in order to generate a cause of action for clergy malpractice, the cleric's

behavior must 'fall outside the scope of other recognized torts.' " Id., quoting Strock v.

Pressnell, 38 Ohio St.3d 207, 212 (1988). Accordingly, if a "cleric's behavior fits within an

established category of liability, * * * it would be redundant to simultaneously hold the cleric

liable for clergy malpractice." Id.

{¶ 73} In the present case, appellant brought claims for ordinary negligence, breach

of confidentiality and breach of fiduciary duties, and his claim for clergy malpractice does

not implicate behavior beyond the scope of those claims. Stewart at ¶ 38 (appellant has

failed to allege activity "for which recovery in tort is not available," and therefore "[t]o allow

recovery for clergy malpractice on the basis of this same conduct would be to grant a

redundant remedy"). See also Alexander v. Culp, 124 Ohio App.3d 13, 19 (8th Dist.1997)

("A cause of action for clergy malpractice is not available when other torts provide a

remedy.").

{¶ 74} Based on this court's de novo review of the record, the trial court did not err

in granting summary judgment in favor of appellees on appellant's claims for defamation,

libel, slander, invasion of privacy, false-light invasion of privacy, breach of confidentiality,

No. 22AP-231 25

negligence, intentional infliction of emotional distress, and clergy malpractice.

Accordingly, appellant's second assignment of error is not well-taken and is overruled.

{¶ 75} Based on the foregoing, appellant's two assignments of error are overruled,

and the judgment of the Franklin County Court of Common Pleas is hereby affirmed.

Judgment affirmed.

DORRIAN and MENTEL, JJ., concur.

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