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IN THE COURT OF APPEALS OF OHIO

TENTH APPELLATE DISTRICT

Albert Stewart, Special Administrator of

The Estate of Debora Yardley,

Deceased,

Plaintiff-Appellee/

Cross-Appellant,

No. 02AP-974

(C.P.C. No. 99CV9106)

West Ohio Conference of the United

Methodist Church et al.,

(REGULAR CALENDAR)

Defendants-Appellees,

Steven Colliflower,

Defendant-Appellant.

Debora A. Yardley,

Plaintiff-Appellee,

No. 02AP-975

(C.P.C. No. 99CV8286)

West Ohio Conference of the United

Methodist Church et al.,

(REGULAR CALENDAR)

Defendants-Appellees,

Steven Colliflower,

Defendant-Appellant.

Debora A. Yardley, Plaintiff; Albert Stewart, :

Special Administrator of the Estate of

Debora Yardley, Deceased,

Plaintiff-Appellant,

Nos. 02AP-974, 02AP-975, 02AP-982 & 02AP-983

No. 02AP-982

(C.P.C. No. 98CV8286)

West Ohio Conference of the United

Methodist Church et al.,

(REGULAR CALENDAR)

Defendants-Appellees.

Albert Stewart, Special Administrator of

The Estate of Debora Yardley, Deceased,

Plaintiff-Appellant,

No. 02AP-983

(C.P.C. No. 99CV9106)

West Ohio Conference of the United

Methodist Church et al.,

(REGULAR CALENDAR)

Defendants-Appellees.

O P I N I O N

Rendered on June 5, 2003

Clifford O. Arnebeck, Jr., for plaintiff-appellant Albert Stewart,

Special Administrator of The Estate of Debora Yardl ey,

Deceased.

Matthew J. Smith and John A. Fiocca, Jr., for appellee West

Ohio Conference of the United Methodist Church.

Steven V. Colliflower, pro se.

Philip R. Moots and Christopher E. Hogan, for defendants-

appellees Columbus North District of the United Met hodist

Church, Inc.

APPEAL from the Franklin County Court of Common Ple as.

LAZARUS, J.

Nos. 02AP-974, 02AP-975, 02AP-982 & 02AP-983

{¶1}

Plaintiff-appellant, Albert Stewart, Special Admini strator of the Estate of

Debora Yardley, Deceased (“appellant” or “Stewart”) appeals from the August 27, 2001

decision of the Franklin County Court of Common Ple as granting defendants-appellees,

West Ohio Conference of the United Methodist Church

(“West Ohio Conference”) and

Columbus North District of the United Methodist Chu rch’s (“Columbus North District”)

motion for summary judgment, and denying Stewart’s

motion for summary judgment

against West Ohio Conference and Columbus North Dis trict.

Defendant-appellant,

Steven Colliflower (“Colliflower”), filed an appeal in this matter regarding the trial court’s

May 24, 2002 amended judgment entry awarding appell ant compensatory damages in

the amount of $373,305.50, punitive damages in the

amount of $10 million, plus

$130,656.92 in attorney fees.

For the reasons that follow, we affirm the judgme nt of the

trial court.

{¶2}

Debora A. Yardley (“Yardley”) was a parishioner at

St. Luke’s United

Methodist Church (“St. Luke’s”). St. Luke’s is a l ocal church, located within the Columbus

North District and a part of the West Ohio Conferen ce, which was led by Bishop Judith

Craig at the time of the alleged incidents. St Luk e’s is one of 55 local United Methodist

churches located in the northern Franklin County ar ea.

{¶3}

In September 1994, Yardley and her son attended a c hurch picnic at St.

Luke’s. A week later, Yardley attended Sunday serv ice at the church. At service, Yardley

filled out a visitor’s card requesting a home visit . Colliflower, who at that time was a

pastor of the church, telephoned Yardley, and later came to her home for a visit. Yardley

vaguely remembered Pastor Colliflower’s home visit. Yardley recalled Pastor Colliflower

telling her that she needed counseling twice a week . (1996 Yardley Depo., 83.)

{¶4}

Yardley went to St. Luke’s for a one-on-one counsel ing session with Pastor

Colliflower. Yardley needed counseling to help cop e with the responsibilities of caring for

her six-year-old son who suffered from congenital p hysical medical problems, her

alcoholism, her recent divorce in which she lost cu stody of her son, alienation from her

Assigned on appeal case Nos. 02AP-982 and 02AP-983 .

Assigned on appeal case Nos. 02AP-974 and 02AP-975 .

Nos. 02AP-974, 02AP-975, 02AP-982 & 02AP-983

family, and issues of rape that occurred in New Yor k and Connecticut years prior.

(Amended Complaint ¶30.) At her first session, Yar dley stated that Pastor Colliflower put

his arms around her and kissed her on the lips. (Y ardley Depo., 86.) Yardley left the

session, feeling confused.

A few days later, Yardl ey received a note from Pastor

Colliflower stating that he had overstepped his bou ndaries.

{¶5}

On October 18, 1994, Pastor Colliflower moved Yardl ey into the parsonage

as a means of providing Yardley with a stable envir onment to receive spiritual counseling,

to cope with her alcoholism, and a work environment

conducive for Yardley to complete

her doctorate degree. During her deposition, Yard ley testified that she was intoxicated

when Pastor Colliflower took her to the parsonage.

(Yardley Depo., 101.) Yardley

testified that on the night she moved in, she told

Pastor Colliflower she was experiencing

hallucinations that were not the effects of her alc oholism. At that point, Pastor Colliflower

climbed into the bed with Yardley, held her, caress ed her, and said, “ ‘[e]very time I say

the number seven, number seven, number seven, you w ill have sex with me.’ ” (Yardley

Depo., 108.) Pastor Colliflower also told Yardley that as part of her spiritual growth and

relationship with him, they had to have sexual inte rcourse every morning. (Id. at 119.)

Yardley did not complain to anyone or refuse Pastor

Colliflower’s sexual advances.

Yardley testified that she had sex with Pastor Coll iflower approximately 50 to 52 times.

(Id. at 156.)

{¶6}

Robert Gage, Yardley’s husband, became suspicious w hen Yardley told

him she was experiencing hallucinations and was pro hibited from receiving medical

assistance. On October 23, 1994, Gage contacted Mi chael Johnson, Superintendent of

the Columbus North District, and Charles Loveless, District Superintendent and Assistant

to Bishop Craig, to inform them of his suspicions o f inappropriate conduct by Pastor

Colliflower. According to Reverend Johnson, Gage b elieved that Yardley was being held

against her will and that Pastor Colliflower was us ing mind control over Yardley and the

St. Luke’s congregation. (Johnson Affidavit, defen dants-appellees’ Motion for Summary

Judgment, filed April 17, 2001, Exh. B, ¶5.)

Nos. 02AP-974, 02AP-975, 02AP-982 & 02AP-983

{¶7}

On October 24, 1994, Reverend Johnson requested tha t Pastor Colliflower

come to the district office to attend a meeting. O n October 26, 1994, Pastor Colliflower,

along with his wife, Yardley, and Christine Schiltz , assistant to the pastor, met with

Reverend Johnson. Yardley alleged she was instruct ed by Pastor Colliflower to tell

Johnson “everything was fine.” (Amended Complaint ¶38.) The West Ohio Conference

and the Columbus North District determined that no

formal investigation would be

conducted.

Bishop Craig announced that no offici al investigation would be conducted

without an affidavit from Yardley.

{¶8}

Yardley alleged that from October 1994 through Janu ary 1995, Pastor

Colliflower engaged in sexual relations with her ei ther at the parsonage after the pastor’s

wife left for work and his son left for school, or

at the church. Yardley alleged Pastor

Colliflower used drugs, hypnosis, and psychological manipulation to gain control over her

“in an extended regular regimen of sexual activity

for his own gratification.” (Amended

Complaint ¶42.)

{¶9}

In January 1995, Yardley confronted Pastor Colliflo wer and his wife about

the pastor’s inappropriate conduct. Yardley left t he parsonage sometime in January or

February 1995, and reported her allegations of sexu al abuse to the Columbus North

District and the West Ohio Conference. Pastor Coll iflower requested and was granted a

leave of absence. According to Yardley, Pastor Col liflower initially denied her allegations,

but later admitted to one instance of sexual interc ourse with Yardley, which she initiated.

{¶10}

Yardley alleged that due to the psychological, spir itual, and sexual abuse

she suffered, among other things, post-traumatic st ress disorder, severe alcoholism,

severe mental anguish, outrage, painful humiliation

and embarrassment, pain and

suffering, loss of trust in professional relationsh ips and counseling, loss of trust in church

and religious organizations, loss of self-confidenc e, incapacitating depression, extensive

hospitalization, had to take psychiatric drugs, and

undergo counseling, and incurred

inpatient medical expenses in excess of $25,000 and

damage to her reputation.

(Amended Complaint ¶50-54.)

Nos. 02AP-974, 02AP-975, 02AP-982 & 02AP-983

{¶11}

On April 27, 1995, Yardley filed a complaint agains t Colliflower for

intentional infliction of serious emotional distres s, and against St. Luke’s, Columbus North

District, and the West Ohio Conference for negligen ce, negligent infliction of emotional

distress, and clergy malpractice for failing to int ervene in Yardley’s abusive ministerial

counseling relationship with Colliflower.

{¶12}

On May 19, 1997, Colliflower filed for bankruptcy.

Yardley’s suit was stayed

for approximately one year during the pendency of t he bankruptcy proceedings. After the

bankruptcy proceedings were reactivated, Yardley en tered into a settlement agreement

with St. Luke’s and, on July 7, 1998, the trial cou rt granted Columbus North District and

West Ohio Conference’s motion for summary judgment.

However, Yardley voluntarily

dismissed the action before entry of final judgment .

{¶13}

On October 26, 1998, Yardley refiled her complaint against the West Ohio

Conference, Columbus North District, and Colliflowe r. Yardley died on May 22, 1999. On

June 4, 1999, Yardley’s counsel filed a suggestion

of death pursuant to Civ.R. 25. On

September 2, 1999, Stewart filed a motion in the na me of the estate requesting that he be

substituted as the plaintiff in the pending action.

The probate court filed an entry on

September 2, 1999, appointing Stewart as special ad ministrator with the power to fully

administer Yardley’s estate. On June 17, 1999, Wes t Ohio Conference and Columbus

North District opposed substitution asserting that Yardley’s heirs were the survivors in the

action, and that Stewart was not a real party in in terest and lacked standing because

Yardley’s estate closed on June 17, 1999.

{¶14}

On October 27, 1999, Stewart, as special administra tor, filed a wrongful

death action against West Ohio Conference, Columbus North District, and Colliflower

alleging Yardley died as a result of Colliflower’s willful and malicious acts and West Ohio

Conference’s and Columbus North District’s negligen ce. On October 29, 1999, the trial

court denied Stewart’s motion to substitute.

On No vember 10, 1999, West Ohio

Conference and Columbus North District filed a moti on to consolidate the survival and

wrongful death actions, which was granted by the tr ial court on January 13, 2000. Also

on January 13, 2000, the trial court journalized an

entry denying Stewart’s motion to

Nos. 02AP-974, 02AP-975, 02AP-982 & 02AP-983

substitute and dismissed the survival and wrongful

death actions.

Stewart timely

appealed, and on August 29, 2000, this court revers ed and remanded finding that Stewart

was the “proper” party and “real party in interest” in the survival action, and that Stewart

was entitled to bring the wrongful death action in

his name and capacity as special

administrator. Yardley v. W. Ohio Conference of the United Methodi st Church, Inc.

(2000), 138 Ohio App.3d 872.

{¶15}

On remand, the trial court considered cross-motions for summary judgment

filed by West Ohio Conference, Columbus North Distr ict, and the estate of Yardley. On

August 27, 2001, the trial court granted the joint

motion of West Ohio Conference and

Columbus North District for summary judgment and de nied Stewart’s motion. The claims

of intentional infliction of emotional distress and

wrongful death against Colliflower

proceeded to jury trial.

{¶16}

On February 15, 2002, Colliflower was found not lia ble on the claim of

wrongful death, but liable for intentional inflicti on of emotional distress. The estate of

Yardley was awarded compensatory damages in the amo unt of $373,305.50 and punitive

damages in the amount of $10 million, plus attorney

fees. The matter of attorney fees

was referred to a magistrate who recommended $130,6 56.92. The trial court adopted the

magistrate’s decision on August 7, 2002.

{¶17}

Colliflower appealed. Stewart filed a cross-appeal to Colliflower’s appeal

and also appealed the trial court’s decision render ing summary judgment in favor of West

Ohio Conference and Columbus North District, assign ing the following assignments of

error in case Nos. 02AP-982 and 02AP-983:

{¶18}

“I. The trial court erred in granting, in its decis ion of August 27, 2001,

summary judgment to defendants West Ohio Conference and Columbus North District

(and in its decision of July 22, 2002 denying recon sideration of that decision) in the face

of evidence, in the form prescribed by Civ.R. 56, u pon which a jury could reasonably find

liability on the part of these defendants to plaint iff-appellant.

On September 25, 2002, we sua sponte consolidated

the appeals for the purposes of record filing, brie fing,

and oral argument.

Nos. 02AP-974, 02AP-975, 02AP-982 & 02AP-983

{¶19}

“II. The trial court erred in its decision of Augus t 27, 2001, granting

summary judgment to defendants West Ohio Conference and Columbus North District

(and in its decision of July 22, 2002 denying recon sideration of that decision) in ruling @

pp. 15-16, as a matter of law, that plaintiff offer ed insufficient evidence that the harm to

plaintiff, both in terms of serious emotional distr ess while she survived and her death after

prolonged post traumatic stress disorder and major depression, was foreseeable in the

circumstances of this case. It further erred in fi nding that ‘Yardley and Colliflower were

engaged in a sexual relationship that both particip ants actively hid from these

defendants,’ in the face of the evidence of control

exercised over Yardley by Colliflower

and the findings of fact, by the US Bankruptcy Cour t that Colliflower had willfully and

maliciously injured Yardley, Debora A. Yardley v. Stephen V. Colliflower , Adversary

Proceeding No. 97-0132, unreported, United States B ankruptcy Court Southern District of

Ohio, Feb. 6, 1998). It further erred in ruling, a s a matter of law, that the failure of

defendants to intervene would not have removed the conditions by which Colliflower was

able to victimize Yardley. Ohio Jury Instructions, Negligent Infliction of Serious Emotional

Distress and Probable Cause.

{¶20}

“III. The trial court erred in its decision of Au gust 27, 2001, granting

summary judgment to defendants West Ohio Conference and Columbus North District

(and in its decision of July 22, 2002 denying recon sideration of that decision) on plaintiff-

appellant’s wrongful death claim, inasmuch as plain tiff-appellant submitted expert

affidavits sufficient to create an issue of materia l fact as to the negligence of the

defendants as being a proximate cause of her death

on May 22, 1999; and defendants

offered no expert affidavits to the contrary.

{¶21}

“IV. The trial court erred in failing to find in i ts decision of August 27, 2001,

that because defendants did not offer any opposing

clergy expert testimony on the

established standard of care in the Columbus commun ity and defendants conformance

thereto, plaintiff was entitled to summary judgment on the claim of clergy malpractice for

absence of opposing affidavits to establish a genui ne issue of material fact regarding

Nos. 02AP-974, 02AP-975, 02AP-982 & 02AP-983

whether the West Ohio Conference and Columbus North District breached a duty of care

owed to Debora Yardley. Hoffman v. Davidson (1987), 31 Ohio St. 3d 60.

{¶22}

“V. The trial court erred in summarily dismissing, at p. 21 of its decision of

August 27, 2001, plaintiff-appellant’s claim for ab use of process, particularly in regard to

the unexplained failure of counsel for defendant We st Ohio Conference to produce

material evidence relating to videotaped materials

used by the defendant in training

ministers in sexual ethics in the ministry, in acco rdance with a court order.

Ward v.

Hester (1972), 32 Ohio App. 2d. 121.”

{¶23}

Appellant’s five assignments of error are interrela ted, and, as such, we will

address them together. Appellant contends that sum mary judgment was improperly

granted. Civ.R. 56(C) states that summary judgment shall be rendered forthwith if:

{¶24}

“* * * [T]he pleadings, depositions, answers to int errogatories, written

admissions, affidavits, transcripts of evidence, an d written stipulations of fact, if any,

timely filed in the action, show that there is no g enuine issue as to any material fact and

that the moving party is entitled to judgment as a

matter of law. * * *”

{¶25}

Accordingly, summary judgment is appropriate only w here: (1) no genuine

issue of material fact remains to be litigated; (2) the moving party is entitled to judgment

as a matter of law; and (3) viewing the evidence mo st strongly in favor of the nonmoving

party, reasonable minds can come to but one conclus ion and that conclusion is adverse

to the nonmoving party. Tokles & Son, Inc. v. Midwestern Indemn. Co. (1992), 65 Ohio

St.3d 621, 629, citing Harless v. Willis Day Warehousing Co. (1978), 54 Ohio St.2d 64,

65-66. "[T]he moving party bears the initial respo nsibility of informing the trial court of the

basis for the motion, and identifying those portion s of the record * * * which demonstrate

the absence of a genuine issue of fact on a materia l element of the nonmoving party's

claim." Dresher v. Burt (1996), 75 Ohio St.3d 280, 292. Once the moving p arty meets its

initial burden, the nonmovant must then produce com petent evidence showing that there

is a genuine issue for trial. Id. Summary judgmen t is a procedural device to terminate

litigation, so it must be awarded cautiously with a ny doubts resolved in favor of the

nonmoving party. Murphy v. Reynoldsburg (1992), 65 Ohio St.3d 356, 358-359.

Nos. 02AP-974, 02AP-975, 02AP-982 & 02AP-983

{¶26}

Appellate review of summary judgments is de novo.

Koos v. Cent. Ohio

Cellular, Inc. (1994), 94 Ohio App.3d 579, 588; Midwest Specialties, Inc. v. Firestone Tire

& Rubber Co. (1988), 42 Ohio App.3d 6, 8. We stand in the shoe

s of the trial court and

conduct an independent review of the record. As su ch, we must affirm the trial court's

judgment if any of the grounds raised by the movant

at the trial court are found to support

it, even if the trial court failed to consider thos e grounds. [See Dresher; Coventry Twp. v.

Ecker (1995), 101 Ohio App.3d 38, 41-42.]

{¶27}

Appellant contends that the trial court erred in gr anting appellees’ motion for

summary judgment where evidence was presented to su pport appellant’s claims of

negligence, negligent infliction of emotional distr ess, clergy malpractice, wrongful death,

and abuse of process. Appellant argues that materi al evidence exists in the record, which

supports the allegations against appellees.

{¶28}

First, on the claim of negligence, appellant assert s that appellees permitted

the relationship between Colliflower and Yardley to continue, and failed to supervise,

investigate and monitor the situation. In order to

prevail on the theory of negligence, a

plaintiff must demonstrate the existence of a legal duty, a breach of that legal duty, and

an injury proximately caused from that breach.

Menifee v. Ohio Welding Products, Inc.

(1984), 15 Ohio St.3d 75; Jeffers v. Olexo (1989), 43 Ohio St.3d 140, 142. A duty owed

to the plaintiff is fundamental to establishing act ionable negligence. Id. at 142. If there is

no duty, then no legal liability can arise. Id . In order to defeat a properly supported

motion for summary judgment brought in a negligence

action, the plaintiff must come

forward with sufficient evidence to allow reasonabl e minds to infer that the duty was

breached, and that the breach of that duty was the

proximate cause of the plaintiff's

injuries.

{¶29}

Based on the record before us, we cannot find appel lees liable on the

theory of negligence for Yardley’s injuries. Appel lant has failed to set forth any evidence

that appellees had actual or constructive knowledge of Pastor Colliflower’s conduct. At

the time Gage approached Reverend Johnson about his suspicions, Reverend Johnson

scheduled a meeting in order to investigate the mat ter. Yardley assured Reverend

Nos. 02AP-974, 02AP-975, 02AP-982 & 02AP-983

Johnson that she was fine. Reverend Johnson furthe r noted that neither Yardley, nor

members of the congregation, appeared to be in a hy pnotic or mind controlled state.

(Johnson affidavit ¶8.) It was not until February

1995, when Yardley moved out of the

parsonage, that Reverend Johnson became aware of al legations of sexual abuse. At that

point, Reverend Johnson immediately contacted Bisho p Craig. Yardley admitted in her

deposition that she did not inform anyone of the al leged sexual abuse or conduct until

February 1995. (Yardley Depo., 181.)

{¶30}

Furthermore, appellees were not negligent in failin g to supervise, monitor,

direct, or control Pastor Colliflower in his counse ling relationship with Yardley. Appellees

presented evidence that there existed no employment relationship with Pastor Colliflower.

Pastor Colliflower is a local church pastor. Pasto r Colliflower was compensated for his

services through St. Luke’s, not through the West O hio Conference and Columbus North

District. Appellant failed to present any evidence of an employment relationship.

{¶31}

Finally, appellant contends that appellees were neg ligent in retaining Pastor

Colliflower after learning that Pastor Colliflower was receiving psychological counseling

and taking psychiatric drugs for clinical depressio n. (Amended Complaint ¶58[e].) In

order to prevail on a claim for negligent retention , appellant must establish:

{¶32}

“(1) the existence of an employment relationship; ( 2) the employee's

incompetence; (3) the employer's actual or construc tive knowledge of such

incompetence; (4) the employee's act or omission ca using the plaintiff's injuries; and (5)

the employer's negligence in hiring or retaining th e employee as the proximate cause of

plaintiff's injuries.” Ruta v. Breckenridge-Remy Co. (1982), 69 Ohio St.2d 66, 69; Essig v.

Sara Lane Corp. (Aug. 1, 2000), Franklin App. No. 99AP-1432.

{¶33}

Appellant has failed to satisfy the first, second, third, and fifth elements with

regard to a claim for negligent retention of Pastor

Colliflower. As previously discussed,

appellant has failed to present evidence of the exi stence of any employment relationship

between Pastor Colliflower and appellees.

Appellan t has further failed to present

evidence that Pastor Colliflower’s admission of dep ression interfered with or affected his

ministry duties at St. Luke’s. During her depositi on, Bishop Craig stated that Pastor

Nos. 02AP-974, 02AP-975, 02AP-982 & 02AP-983

Colliflower’s admission of depression does not call for action by the superintendent unless

his depression was “perceived by the congregation o r the pastor as to be a major

interference with the ministry of the congregation. ” (1995 Craig Depo., 55.) Furthermore,

appellant failed to set forth any evidence that app ellees had knowledge of Pastor

Colliflower’s incompetence. As such, appellant’s a rgument lacks merit and the trial court

did not err in granting appellees’ motion for summa ry judgment on appellant’s negligence

claim.

{¶34}

Appellant has also alleged that Yardley suffered “g reat and extreme

emotional distress” as a result of the “psychologic al, spiritual and sexual abuse” she

experienced at the hands of Pastor Colliflower. (A mended Complaint at ¶54.) Appellant

asserted a claim of negligent infliction of emotion al distress against appellees. In Paugh

v. Hanks (1983), 6 Ohio St.3d 72, paragraph 3b of the sylla bus, the Ohio Supreme Court

held:

{¶35}

“The factors to be considered in order to determine

whether a negligently

inflicted emotional injury was reasonably foreseeab le include: (1) whether the plaintiff was

located near the scene of the accident, as contrast ed with one who was a distance away;

(2) whether the shock resulted from a direct emotio nal impact upon the plaintiff from

sensory and contemporaneous observance of the accid ent, as contrasted with learning of

the accident from others after its occurrence; and

(3) whether the plaintiff and victim (if

any) were closely related, as contrasted with an ab sence of any relationship or the

presence of only a distant relationship.”

{¶36}

Under Ohio law, appellant is barred from recovery.

We have no doubt that

Yardley’s emotional injuries were real, however, th e record does not demonstrate that

Yardley’s injuries were reasonably foreseeable by a ppellees.

By Yardley’s own

admission, her sexual encounters with Pastor Collif lower were consensual and unknown

to the West Ohio Conference and the Columbus North

District. Furthermore, the facts of

this case do not establish that Yardley was a bysta nder located near the scene of an

accident, who suffered contemporaneous emotional di stress as a result of observing an

accident. For the reason set forth above, we find

that the trial court did not err in granting

Nos. 02AP-974, 02AP-975, 02AP-982 & 02AP-983

appellees' motion for summary judgment on appellant ’s claim of negligent infliction of

emotional distress.

{¶37}

Third, appellant maintained that appellees were lia ble for clergy

malpractice. Clergy malpractice is defined as “the failure to exercise the degree of care

and skill normally exercised by members of the cler gy in carrying out their professional

duties.” Byrd v. Faber (1991), 57 Ohio St.3d 56, 57. The Ohio Supreme Co urt held in

Strock v. Pressnell (1988), 38 Ohio St.3d 207, 212, that in order to ge nerate a cause of

action for clergy malpractice, the cleric's behavio r must “fall outside the scope of other

recognized torts.” Therefore, if the cleric's beh avior fits within an established category of

liability, such as fraud, duress, assault, or batte ry, it would be redundant to simultaneously

hold the cleric liable for clergy malpractice. In

order “ ‘[t]o avoid a redundant remedy * * *

any functional theory of clergy malpractice needs [ to] address incidents of the clergy-

communicant relationship not already actionable.’ ” Id., citing, Hester v. Barnett (Mo.App.

1987), 723 S.W.2d 544, 551.

{¶38}

In this case, Yardley essentially alleges that Past or Colliflower used

“pseudo spiritual and religious precepts” to persua de her to subject herself to his control

and engage in sexual conduct. (Amended Complaint a t ¶76.) Similar to the plaintiff in

Faber, appellant’s claim for clergy malpractice did not address any aspect of the clergy-

communicant relationship not already actionable. A ppellant has failed to name any

activity engaged in by Pastor Colliflower for which recovery in tort is not available. For his

actions, Pastor Colliflower could be found liable f or intentional infliction of emotional

distress, battery, fraud, etc. In fact, on Februar y 15, 2002, a jury found Pastor Colliflower

liable for intentional infliction of emotional dist ress and awarded the estate of Yardley

$373,305.50 in compensatory damages, and $10 millio n in punitive damages. To allow

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

redundant remedy. Faber, at 58. Therefore, there is no basis for recogniz ing appellant’s

claim for clergy malpractice against Pastor Collifl ower or through the doctrine of

respondeat superior, against the appellees.

The tr ial court did not err in granting

appellees’ motion for summary judgment.

Nos. 02AP-974, 02AP-975, 02AP-982 & 02AP-983

{¶39}

Fourth, in the wrongful death complaint, appellant alleges that Yardley died

as a result of the negligence of appellees. R.C. 2 125.01(A)(1) provides a civil remedy to

eligible persons when a death is “caused by wrongfu l act.” The elements of a wrongful

death claim are:

{¶40}

“(1) the existence of a duty owing to plaintiff's d ecedent, (2) a breach of that

duty, and (3) proximate causation between the breac h of duty and the death.”

Littleton v.

Good Samaritan Hosp. & Health Ctr. (1988), 39 Ohio St.3d 86, 92, citing Bennison v.

Stillpass Transit Co. (1966), 5 Ohio St.2d 122, paragraph one of the syl labus.

{¶41}

In this case, three and one-half years after the al leged negligence, Yardley

died from cirrhosis of the liver, secondary to acut e alcoholism. Appellant presented the

affidavit of Marsha Driscoll, Ph.D., a professional psychologist. Dr. Driscoll examined

Yardley before and after the alleged sexual abuse a t St. Luke’s. Dr. Driscoll opined that

the pain and suffering Yardley endured and the risk

of death was a foreseeable

consequence of permitting Yardley to continue couns eling with Pastor Colliflower.

(Driscoll Affidavit, ¶26.) The trial court determi ned that, as a psychologist, Dr. Driscoll

was not qualified to opine that Yardley died as a r esult of her sexual relationship with

Pastor Colliflower. Appellees cannot be held liabl e for the death of Yardley, as there was

no evidence presented that appellees had actual or constructive knowledge of the alleged

sexual abuse requiring the West Ohio Conference and

the Columbus North District to

intervene and prevent the conduct from occurring.

Appellant has failed to present any

evidence that the conduct of the West Ohio Conferen ce or the Columbus North District

caused Yardley’s death. As such, the trial court p roperly granted appellees’ motion for

summary judgment.

{¶42}

Lastly, appellant asserted in the wrongful death co mplaint a claim of abuse

of process against appellees. Appellant specifical ly contends that appellees failed to

comply with the production of sexual ethics trainin g materials. The elements of a claim

for abuse of process are:

{¶43}

“(1) that a legal proceeding has been set in motion in proper form and with

probable cause; (2) that the proceeding has been pe rverted to attempt to accomplish an

Nos. 02AP-974, 02AP-975, 02AP-982 & 02AP-983

ulterior purpose for which it was not designed; and

(3) that direct damage has resulted

from the wrongful use of process.”

Yaklevich v. Kemp, Schaeffer & Rowe Co., L.P.A.

(1994), 68 Ohio St.3d 294, paragraph one of the syl labus.

{¶44}

Appellant failed to present sufficient evidence to support the claim for abuse

of process. The record is devoid of any evidence t hat the consolidated survivor and

wrongful death proceedings were “perverted to attem pt to accomplish an ulterior purpose

for which it was not designed.”

Additionally, appe llant had not demonstrated what

damage resulted from the failure to turn over the m aterials.

Furthermore, a

comprehensive review of the record reveals that app ellees did turn over the requested

documents for production. Therefore, appellant ha s failed to raise a genuine issue of

material fact with regard to this claim.

{¶45}

Based on the foregoing, we conclude that there is n o genuine issue of

material fact, and that appellees are entitled to j udgment as a matter of law upon

appellant’s negligence, negligent infliction of emo tional distress, clergy malpractice,

wrongful death, and abuse of process claims. As suc h, we hold that summary judgment

was properly rendered in appellees’ favor upon thes e claims.

{¶46}

For the abovementioned reasons, appellant’s first, second, third, fourth, and

fifth assignments of error are overruled, and the j udgment of the Franklin County Court of

Common Pleas is affirmed.

Judgment affirmed.

BRYANT and TYACK, JJ., concur.

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