DiPietro v. Lighthouse Ministries

• Decision Date: 17 February 2005
• Docket Number: No. 04AP-910.,04AP-910.
• Parties: DiPIETRO, Appellant, v. LIGHTHOUSE MINISTRIES et al., Appellees.
• Court: Ohio Supreme Court

Page 630

825 N.E.2d 630

159 Ohio App.3d 766

2005-Ohio-639

DiPIETRO, Appellant, v. LIGHTHOUSE MINISTRIES et al., Appellees.

No. 04AP-910.

Court of Appeals of Ohio, Tenth District, Franklin County.

Decided February 17, 2005.

John M. Gonzales, Westerville, for appellant.

Stanley S. Keller, Walter H. Krohngold, Martin T. Powers and Michael Cole, for appellees.

McGRATH, Judge.

{¶ 1} Plaintiff-appellant, Tracy L. DiPietro, appeals from the August 9, 2004 judgment entry of the Franklin County Court of Common Pleas, which granted the motion of defendants-appellees, Lighthouse Ministries and the Church of Christ in Christian Union ("defendants"), for summary judgment. For the reasons that follow, we affirm the judgment of the trial court.

{¶ 2} In May 2001, plaintiff and her then husband, Tony DiPietro, attended a revival church meeting where Pastor Troy Ervin was speaking. Ervin invited the couple to attend services at Lighthouse Ministries, where he was the senior pastor and regularly preached. Plaintiff soon began attending services at the church on a regular basis.

{¶ 3} At around that same time, plaintiff was experiencing problems in her marriage. Plaintiff confided in Ervin about her marital problems. As senior pastor, Ervin provided plaintiff with spiritual counseling to help with her problems. Plaintiff and Ervin had approximately four such counseling sessions, which took place in his office at the church. Plaintiff also spoke to Ervin while attending church.

{¶ 4} Sometime in early July 2001, plaintiff and Ervin met in a park, where they shared a kiss. Soon after that kiss, Ervin called plaintiff at her home and invited her to his apartment. Plaintiff initially said no because of Ervin's wife, but then Ervin explained that his wife was not home, because she was studying for the bar exam. Plaintiff and Ervin arranged to meet in the parking lot at Tuttle Mall so that plaintiff could follow Ervin back to his apartment which she did. There, the couple engaged in consensual sexual intercourse.

{¶ 5} In August 2001, Ervin resigned from his position as senior pastor at the church. Ervin told the congregation that he and his wife had been having marital problems and cited his forthcoming divorce as the impetus for his resignation. Ervin's wife was the daughter of Pastor Herschel Holly, who was junior to Ervin at the church. After Ervin resigned, Pastor Holly became senior pastor.

{¶ 6} In late October 2001, Pastor Holly learned that Ervin had had extramarital affairs. Rod Sanders ("Sanders"), who was then married to Kelly Sanders and is now married to plaintiff, contacted Pastor Holly's daughter and told her that Ervin had had an affair with Kelly Sanders, as well as with another woman whom he did not name. Pastor Holly's daughter confided in her mother, Mary Holly, who then told her husband, Pastor Holly, of Ervin's affairs. Pastor Holly contacted Sanders and told him that he needed to know what was going on and requested that Sanders disclose the parties involved. Sanders spoke with plaintiff about Pastor Holly's request, and plaintiff herself went to Pastor Holly and told him that she had had an affair with Ervin. Both plaintiff and Pastor Holly testified that this was the first time that Pastor Holly knew of Ervin's affair with plaintiff. It was also during this time that plaintiff and Sanders began a romantic relationship.

{¶ 7} Within 30 minutes of learning about Ervin's affair with plaintiff, Pastor Holly called his direct supervisor, the denomination's district superintendent, and apprised him of the situation. One of the actions taken by the denomination was to immediately discontinue Ervin's severance package. In addition, the denomination revoked Ervin's ordination and sent a letter to all licensed ministers associated with the denomination stating that Ervin should not be permitted to conduct church services. In November 2001, the church's congregation was also informed of the situation that had come to light, but plaintiff's name was not mentioned.

{¶ 8} Plaintiff continued to attend services at the church until December 2001, when she had a confrontation with Mary Holly. On that particular Sunday, plaintiff and her mother were praying at the altar. Mary Holly joined them, and a confrontation ensued, although what was actually said is in dispute. Plaintiff states that Mary Holly called her a liar and told her that she should break up with Sanders, since both she and Sanders were still married to other people and that she was never to marry again because of the adulterous affair she had had with Ervin. Mary Holly also suggested that plaintiff seek spiritual guidance from Pastor Holly.

{¶ 9} In June 2002, plaintiff filed the instant action against defendants and Ervin, alleging that defendants had been negligent in their hiring, supervision, and retention of Ervin because they knew or should have known that he would take sexual advantage of female members of the church. Plaintiff also claimed that as a result of Ervin's conduct, she suffered severe and debilitating emotional distress, embarrassment, mental anguish, stress, and loss of reputation. Defendants moved for summary judgment, which was granted by decision on May 3, 2004, and on August 9, 2004, by judgment entry. Also on August 9, 2004, plaintiff dismissed Ervin pursuant to Civ.R. 41(A).

{¶ 10} Plaintiff appeals, assigning the following assignment of error:

[1.] The trial court erred by granting appellees [sic] motion for summary judgment.

{¶ 11} Plaintiff contends that summary judgment was improperly granted. Civ.R. 56(C) states that summary judgment shall be rendered forthwith if "the pleadings, depositions, answers to interrogatories, written admissions, affidavits, transcripts of evidence, and written stipulations of fact, if any, timely filed in the action, 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."

{¶ 12} Accordingly, summary judgment is appropriate only if (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 most strongly in favor of the nonmoving party, reasonable minds can come to but one conclusion and that conclusion is adverse to the nonmoving party. Tokles & Son, Inc. v. Midwestern Indemn. Co. (1992), 65 Ohio St.3d 621, 629, 605 N.E.2d 936, citing Harless v. Willis Day Warehousing Co. (1978), 54 Ohio St.2d 64, 65-66, 8 O.O.3d 73, 375 N.E.2d 46. "[T]he moving party bears the initial responsibility of informing the trial court of the basis for the motion, and identifying those portions of the record * * * which demonstrate the absence of a genuine issue of fact on a material element of the nonmoving party's claim." Dresher v. Burt (1996), 75 Ohio St.3d 280, 292, 662 N.E.2d 264. Once the moving party meets its initial burden, the nonmovant must then produce competent evidence showing that there is a genuine issue for trial. Id. Summary judgment is a procedural device to terminate litigation, so it must be awarded cautiously, with any doubts resolved in favor of the nonmoving party. Murphy v. Reynoldsburg (1992), 65 Ohio St.3d 356, 358-359, 604 N.E.2d 138.

{¶ 13} Appellate review of summary judgments is de novo. Koos v. Cent. Ohio Cellular, Inc. (1994), 94 Ohio App.3d 579, 588, 641 N.E.2d 265; Midwest Specialties, Inc. v. Firestone Tire & Rubber Co. (1988), 42 Ohio App.3d 6, 8, 536 N.E.2d 411. We stand in the shoes of the trial court and conduct an independent review of the record. Therefore, 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 those grounds. See Dresher, supra; Coventry Twp. v. Ecker (1995), 101 Ohio App.3d 38, 41-42, 654 N.E.2d 1327.

{¶ 14} Plaintiff contends that the trial court erred in granting defendants' motion for summary judgment where evidence was presented to support her claims for liability premised upon the theories of respondeat superior and negligent hiring, retention, and training.

{¶ 15} First, plaintiff asserts that Ervin's conduct, i.e., his consensual sexual relationship with plaintiff, took place within the course and scope of his employment. Defendants disagree. The leading Ohio case regarding the application of respondeat superior as it pertains to clergy misconduct is Byrd v. Faber (1991), 57 Ohio St.3d 56, 565 N.E.2d 584. In that case, the Supreme Court of Ohio restated the well-established rule that "in order for an employer to be liable under the doctrine of respondeat superior, the tort of the employee must be committed within the scope of employment." Id. at 58, 565 N.E.2d 584. It further explained that when the tort is intentional, the behavior giving rise to the tort must be "`calculated to facilitate or promote the business for which the servant was employed.'" Byrd, 57 Ohio St.3d at 58, 565 N.E.2d 584, quoting Little Miami RR. Co. v. Wetmore (1869), 19 Ohio St. 110, 132; see, also, Taylor v. Doctors Hosp. (1985), 21 Ohio App.3d 154, 21 OBR 165, 486 N.E.2d 1249. "`[A]n intentional and wilful attack committed by an agent or employee, to vent his own spleen or malevolence against the injured person, is a clear departure from his employment and his principal or employer is not responsible therefor.'" Byrd, 57 Ohio St.3d at 59, 565 N.E.2d 584, quoting Schulman v. Cleveland (1972), 30 Ohio St.2d 196, 59 O.O.2d 196, 283 N.E.2d 175. Thus, "an employer is not liable for independent self-serving acts of his employees which in no way facilitate or promote his business." Byrd, 57 Ohio St.3d at 59, 565 N.E.2d 584.

{¶ 16} Ervin is not the first member of the clergy to engage in sexual relations with a parishioner. In Strock v. Pressnell (1988), 38 Ohio St.3d 207, 527 N.E.2d 1235, the Supreme Court of Ohio referred to a minister's sexual affair with his parishioner as ...