Cherepski v. Walker

• Decision Date: 16 January 1996
• Docket Number: No. 94-1329,94-1329
• Citation: 913 S.W.2d 761,323 Ark. 43
• Parties: Don CHEREPSKI, Appellant, v. Donald WALKER; Andrew McDonald; the Roman Catholic Diocese of Little Rock, Arkansas; Andrew J. McDonald, Bishop of the Roman Catholic Diocese of Little Rock, Arkansas; the Roman Catholic Church; and Susan Walker, Appellees.
• Court: Arkansas Supreme Court

Page 761

913 S.W.2d 761

323 Ark. 43

Don CHEREPSKI, Appellant, v. Donald WALKER; Andrew McDonald; the Roman Catholic Diocese of Little Rock, Arkansas; Andrew J. McDonald, Bishop of the Roman Catholic Diocese of Little Rock, Arkansas; the Roman Catholic Church; and Susan Walker, Appellees.

No. 94-1329.

Supreme Court of Arkansas.

Jan. 16, 1996.

Jack Wagoner III, Little Rock, John D. Ogles, Jacksonville, for appellant.

T. Martin Davis, Little Rock, for appellee.

AFFIRMED ON DIRECT APPEAL AND CROSS-APPEAL.

JESSON, Chief Justice.

This appeal poses the basic question of whether a former husband's lawsuit for breach of fiduciary duty, clergy malpractice, intentional infliction of emotional distress, and negligence is barred by the General Assembly's abolition of alienation of affection actions. See Ark.Code Ann. § 16-118-106 (Cum.Supp.1993). The appellant, Don Cherepski, brought suit against Donald Walker, a Catholic priest, Bishop Andrew McDonald, individually and as agent for the Roman Catholic Diocese of Little Rock, Arkansas, and the Roman Catholic Church, and Susan Walker, appellant's former wife. His amended complaint alleged that, while serving as Chancellor of the Diocese and in charge of the Diocesan Marriage Tribunal, Father Walker began an adulterous affair with Susan. As a result of the appellees' actions, Cherepski claimed he was left emotionally and spiritually devastated.

Bishop McDonald and the Walkers filed separate motions to dismiss, each alleging that Cherepski's suit amounted to a claim for alienation of affection. Bishop McDonald additionally asserted that the claim for clergy malpractice was not recognized in Arkansas and that the claims were barred by the First Amendment, the doctrine of charitable immunity, and the statute of limitations. The trial court granted the appellees' motions to dismiss, yet refused the Walkers's request to impose sanctions under Ark.R.Civ.P. 11 against Cherepski, as well as Cherepski's counter-request for sanctions against the Walkers. Cherepski brings seven points on direct appeal, and the Walkers cross-appeal the trial court's refusal to award Rule 11 sanctions against Cherepski. On direct appeal, we treat the trial court's dismissal of the claims as a granting of summary judgment. We affirm the granting of summary judgment in Bishop McDonald's favor on the grounds that the claims against him were barred by the statute of limitations. We conclude that the claims against the appellees for interference with Cherepski's annulment proceedings are outside our jurisdiction. We affirm the granting of summary judgment in the Walkers' favor on the basis that the suit essentially amounted to an action for alienation of affection. In so holding, it is unnecessary to address Cherepski's remaining points on appeal. On cross-appeal, we affirm the trial court's refusal to impose sanctions against Cherepski.

Facts

The facts as alleged in Cherepski's amended complaint are as follows. Don and Susan Cherepski were married in 1972. Five children were born to the marriage. In 1986, Susan became employed with the Roman Catholic Diocese of Little Rock. In September of 1988, Donald Walker, a priest, arrived at the Little Rock Diocese from the Philadelphia Diocese, where he had been Chancellor. Upon Cherepski's "information and belief," the Chancellors of the two cities were exchanged due to each Chancellor's alleged involvement with women in his respective Diocese. Walker became Chancellor to Bishop McDonald, a position only second to the Bishop in authority in the Diocese. He was also placed in charge of the Diocese Marriage Tribunal, having authority over Catholic marriages in the Diocese. Shortly after Walker's arrival in Little Rock, he began spending his days off with Susan, taking all day trips out of town with her, and staying at the Cherepski residence several nights a week until 10:30 or 11:00 p.m., drinking alcohol to the point of intoxication. On one occasion in January of 1989, while appellant was stranded in a Dallas ice storm, Walker spent the night at the Cherepski home with Susan. On another occasion, Walker stayed the night with the Cherepskis at their Hot Springs lakehouse. Walker and Susan stayed up until the "wee hours drinking and cavorting in the bedroom," and Susan did not come to bed that evening. While Cherepski felt that Walker's conduct "seemed highly improper," he had no proof at this time that he was having an affair with Susan.

Cherepski and his mother, Edith Cherepski, became increasingly concerned over the accelerating "friendship" between Susan and Father Walker. Although Walker's Little Rock assignment was scheduled to end in 1989, Bishop McDonald extended the assignment through 1990. In September of 1989, Susan sued the appellant for divorce and moved into a home owned and furnished by the Diocese. According to Cherepski, it was "shortly thereafter" when he met with Bishop McDonald and pleaded for his assistance in "removing Walker from his family life." The Bishop refused to discuss the matter, and later denied having met with Cherepski about the problem. During this time, Edith Cherepski wrote numerous letters to the Bishop asking him to intervene. According to Bishop McDonald, Edith was not a credible source. The complaint further alleged that, after Susan had filed for divorce, and approximately six months prior to the time assignments were to be made in June of 1990, Bishop McDonald reassigned Walker to St. Theresa's Parish, the Cherepskis's church. On March 6, 1990, Bishop McDonald called Cherepski at work and demanded to meet with him. The two met later that day, at which time the Bishop "harassed and intimidated" him, insisting that he not call any priests as witnesses at his upcoming divorce trial.

The Cherepskis were granted a divorce on the appellant's counterclaim on October 11, 1990. Susan was awarded custody of the couple's five children. She subsequently took the children to Albuquerque, New Mexico, without telling Cherepski, who located them two weeks later, only to learn that Susan and Walker had married. Cherepski alleged that this "chain of events" confirmed what he had suspected, but could not prove. Cherepski successfully sought custody of the children and eventually remarried.

Cherepski alleged that Bishop McDonald had a fiduciary duty to promote his spiritual well-being and to refrain from taking any action that would interfere with his spiritual well-being. Cherepski further alleged that the Bishop breached this duty owed him, committed clergy malpractice, and was negligent in allowing various rendezvous between Susan and Father Walker to take place at the expense of the Diocese when he was fully aware of their relationship. It was alleged that Bishop McDonald, who had supervisory authority over Father Walker, was negligent in failing to supervise and shepherd his actions. Cherepski also claimed that the course of conduct engaged by Bishop McDonald constituted the tort of intentional infliction of emotional distress.

Cherepski further asserted that Father Walker, as Chancellor, head of the Diocesan Marriage Tribunal, and later as priest at Cherepski's church, had a fiduciary duty to promote his spiritual well-being and to refrain from taking any action that would interfere with his spiritual well-being. Cherepski alleged breach of fiduciary duty, negligence, and intentional infliction of emotional distress. The complaint further alleged that Susan Walker was an orchestrator, direct participant, co-conspirator, and that she had aided and abetted in all other actions alleged. He also claimed consistent and malicious interference with his attempts to obtain an annulment, resulting in his inability to receive sacraments or to have his remarriage recognized. Cherepski sought damages for emotional pain and suffering, punitive damages, and investigation and attorney's fees.

Bishop McDonald and the Walkers filed separate motions to dismiss. The Walkers attached affidavits and other exhibits to their motion and sought sanctions against Cherepski under Ark.R.Civ.P. 11. Cherepski submitted separate responses to the motions and filed a counter-motion for Rule 11 sanctions against the Walkers, which also included attached exhibits. Following a hearing, the trial court entered an order dismissing Cherepski's complaint with prejudice. The trial court entered a subsequent order denying the Walkers's motion and Cherepski's counter-motion for Rule 11 sanctions. The parties filed timely notices of appeal.

I. Summary judgment

As the parties presented affidavits and other matters outside the pleadings to the trial court on the motion to dismiss, we will treat the motion as one for summary judgment. See Ark.R.Civ.P. 12(b) and (c); Rankin v. Farmers Tractor & Equip. Co., 319 Ark. 26, 888 S.W.2d 657 (1994); Cross v. Coffman, 304 Ark. 666, 805 S.W.2d 44 (1991). Summary judgment should only be granted when there are no genuine issues of material fact and when the case can be decided as a matter of law. Alexander v. Flake, 322 Ark. 239, 910 S.W.2d 190 (1995). We limit our review to examining the evidentiary items presented below and to determining whether the trial court correctly ruled that those items left no material factor in dispute. Id. We view the facts in the light most favorable to the party against whom the motion was filed, and all doubts and inferences are resolved against the moving party. Id.

II. Claims against Bishop McDonald

A. Statute of limitations

In his motion to dismiss filed below, appellee Bishop McDonald asserted that Cherepski's case was barred by the three-year statute of limitations for tort actions. Ark.Code Ann. § 16-56-105 (1987). It is well settled that a defense of limitation is an affirmative defense. Id. ¹

When it is clear on the face of the complaint that the plaintiff's action is barred, the burden shifts to the plaintiff to prove by a preponderance of the evidence that the statute of limitations...