Tharp v. Hillcrest Baptist Church of Columbus

• Docket Number: 22AP-231
• Decision Date: 27 December 2022
• Citation: 204 N.E.3d 709
• Parties: Kevin THARP, Plaintiff-Appellant, v. HILLCREST BAPTIST CHURCH OF COLUMBUS, Ohio et al., Defendants-Appellees.
• Court: Ohio Court of Appeals

204 N.E.3d 709

Kevin THARP, Plaintiff-Appellant,

v.HILLCREST BAPTIST CHURCH OF COLUMBUS, Ohio et al., Defendants-Appellees.

No. 22AP-231

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

Rendered on December 27, 2022

On brief: Butler, Cincione & DiCuccio, N. Gerald DiCuccio ; Columbus, 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, Columbus, for appellees. Argued: Melvin J. Davis.

DECISION

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.

{¶ 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?

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 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.

{¶ 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., 2018-Ohio-2017, 113 N.E.3d 1056, ¶ 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, 616 N.E.2d 519 (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, 2013 WL 5450882, ¶ 10, citing Crosby-Edwards v. Ohio Bd. of Embalmers & Funeral Dirs. , 175 Ohio App.3d 213, 2008-Ohio-762, 886 N.E.2d 251, ¶ 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, 564 N.E.2d 477 (1990) ; Southgate Dev. Corp. v. Columbia Gas Transmission Corp. , 48 Ohio St.2d 211, 358 N.E.2d 526 (1976).

{¶ 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., 2015-Ohio-5161, 56 N.E.3d 245, ¶ 36, quoting Tibbs v. Kendrick , 93 Ohio App.3d 35, 41, 637 N.E.2d 397 (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...