Doe v. Evans

We have for review Doe v. Evans, 718 So.2d 286 (Fla. 4th DCA 1998), a decision of the Fourth District Court of Appeal that expressly construes the First Amendment of the United States Constitution. We have jurisdiction. See art. V, § 3(b)(3), Fla. Const.

The issue presented in this case is whether the First Amendment bars claims for negligent hiring and supervision and breach of fiduciary duty against a religious institution based upon alleged sexual misconduct by one of its clergy with a parishioner in the course of an established marital counseling relationship. For the reasons expressed in Malicki v. Doe, 814 So.2d 347 (Fla. 2002), we hold that the First Amendment does not provide a shield behind which a church may avoid liability for harm caused to a third party arising from the alleged sexual misconduct by one of its clergy members during the course of an established marital counseling relationship. We therefore quash the Fourth District’s contrary decision.

BACKGROUND

Jane Doe brought a lawsuit against the Reverend William Dunbar Evans, III (“Evans”), the Church of the Holy Redeemer, Inc. (“Holy Redeemer”), the Diocese of Southeast Florida, Inc. (“the Diocese”), and Calvin 0. Schofield, Jr., a bishop of the Diocese. Doe alleged in her second amended complaint that she was a former parishioner at Holy Redeemer, where Evans was employed as the pastor. Doe’s complaint asserted that part of Evans’ duties as pastor included “providing counseling and spiritual advice to parishioners having marital difficulties.” Doe alleged that Evans approached her while she was having marital difficulties and asked if he could assist her in counseling, spawning a counselor-counselee relationship. During the course of this counseling relationship, which lasted several months, Evans instituted a personal relationship and became involved with Doe in a “romantic manner.”

Doe alleged that Holy Redeemer, the Diocese, and Schofield (“the Church Defendants”) all were aware of prior incidents involving sexual misconduct by Evans during counseling “at another church and also within the Diocese,” and also while at Holy Redeemer, all before the counseling relationship between Doe and Evans began. Doe alleged that “[i]n spite of this knowledge, nothing was done by the [Church] Defendants ... to rectify the situation.” Doe alleged that the Church Defendants had the right to exercise control over a “sexually exploitive pastoral counselor” and in fact had exercised such' control in the past. Further, Doe claimed that none of the defendants’ conduct was “motivated by any sincerely held religious belief.”

Count I of the second amended complaint set forth a cause of action for breach of fiduciary duty as to all defendants. Doe alleged that Evans and the Church Defendants assumed a fiduciary duty to her by directly soliciting her trust and confidence. Evans then breached that duty by becoming romantically involved with her and by failing to adequately keep Doe’s interests paramount, and the Church Defendants allegedly breached their fiduciary duty because they were aware early on in the counseling process that Evans was abusing his position of trust but failed to protect Doe. Count II of the second amended complaint set forth a cause of action against the Church Defendants for negligent hiring and supervision based upon their knowledge of Evans’ prior sexual misconduct in similar circumstances. Count III alleged a cause of action against all of the defendants for outrageous conduct.

The Church Defendants moved to dismiss, alleging that Doe’s tort claims were barred by the First Amendment and involved practices and procedures beyond the purview of secular courts. As to the third count alleging a cause of action for outrageous conduct, the Church Defendants alternatively claimed that this cause of action was neither recognized by the Florida courts nor, if the allegations were construed as á claim of intentional infliction of emotional distress, did the allegations rise to the level of “outrageousness” required by case law. See Evans, 718 So.2d at 288. The Fourth District affirmed the trial court’s dismissal of this count, see id. at 293-94, and Doe did not raise this issue as error in this Court.

Further, the Church Defendants did not seek dismissal of the first two counts on the basis that those counts failed to state a cause of action under Florida law, nor did they request a more definite statement as to any of the allegations in the second amended complaint. The trial court granted the Church Defendants’ motion to dismiss on the basis that the First Amendment barred consideration of Doe’s claims. Doe appealed the dismissal and the Fourth District affirmed. The Fourth District agreed with the trial court that the First Amendment barred both the breach of fiduciary duty claim and the negligent hiring and supervision claims against the Church Defendants. See id. In holding that the First Amendment barred considerations of the tort claims in this case, it explained that had this case arisen in the context of allegations involving sexual assault on a child, the case would present a more compelling factual scenario. See id. at 290.

DISCUSSION

In Malicki, 814 So.2d 347, we held that the First Amendment does not preclude a secular court from imposing liability against a church for harm caused to an adult and a child parishioner arising from the alleged sexual assault or battery by one of its clergy. Id., op. at 351. In so holding, we disapproved the reasoning of the Fourth District’s opinion in this case, which apparently would have allowed a tort claim against a church defendant only if the underlying sexual misconduct involved criminal activity. See id. at 364. As we explained in Malicki, “[w]hether the priest’s tortious conduct in this case involved improper sexual relations with an adult parishioner he was counseling or sexual assault and battery of a minor, the necessary inquiry in the claim against the Church Defendants is similarly framed: whether the Church Defendants had reason to know of the tortious conduct and did nothing to prevent reasonably foreseeable harm from being inflicted upon the plaintiffs.” Id. at 364.

In this case, Doe raises claims for negligent hiring and supervision and breach of fiduciary duty against the Church Defendants, and these claims are based upon her allegations that Evans engaged in a sexual relationship with her in the course of marital counseling. In Malicki, we concluded that the First Amendment did not bar claims for negligent hiring and supervision because the claims constituted neutral principles of tort law that did not violate either the Free Exercise Clause or the Establishment Clause. Id. at 364-65. Consequently, we conclude that Doe’s right to bring negligent hiring and supervision claims is not barred by the First Amendment.

As to the fiduciary duty claim, Doe also asserts that the Church Defendants breached a fiduciary duty when they failed to protect her from the known harm inflicted by Evans. The Fourth District rejected the contention that the breach of fiduciary duty claim was simply a disguise for an impermissible clergy malpractice claim. See Evans, 718 So.2d at 291. We agree with the Fourth District that Doe’s breach of fiduciary duty claim is not tantamount to a clergy malpractice claim.

This Court has characterized a fiduciary relationship in the following manner:

The relation and duties involved need not be legal; they may be moral, social, domestic or personal. If a relation of trust and confidence exists between the parties (that is to say, where confidence is reposed by one party and a trust accepted by the other, or where confidence has been acquired and abused), that is sufficient as a predicate for relief. The origin of the confidence is immaterial.

Quinn v. Phipps, 98 Fla. 805, 113 So. 419, 421 (1927) (emphasis added). A fiduciary relationship may be implied by law, and such relationships are “premised upon the specific factual situation surrounding the transaction and the relationship of the parties.” Capital Bank v. MVB, Inc., 644 So.2d 515, 518 (Fla. 3d DCA 1994).

Under section 874 of the Restatement (Second) of Torts, Violation of Fiduciary Duty, “[o]ne standing in a fiduciary relation with another is subject to liability to the other for harm resulting from a breach of duty imposed by the relation.” Thus, “[a] fiduciary who commits a breach of his duty as a fiduciary is guilty of tortious conduct to the person for whom he should act.... [T]he liability is not dependent solely upon an agreement or contractual relation between the fiduciary and the beneficiary but results from the relation.” Restatement (Second) of Torts § 874 cmt. b (1979). Moreover, “[a] fiduciary relation exists between two persons when one of them is under a duty to act for or to give advice for the benefit of another upon matters within the scope of that relation.” Id. at cmt. a. Florida courts have recognized a cause of action for breach of fiduciary duty. See generally Palafrugell Holdings, Inc. v. Cassel, 26 Fla. L. Weekly D201, - So.2d -, 2001 WL 20824 (Fla. 3d DCA Jan.10, 2001); Atlantic Nat’l Bank v. Vest, 480 So.2d 1328 (Fla. 2d DCA 1985). Thus, in O’Keefe v. Orea, 731 So.2d 680, 686 (Fla. 1st DCA 1998), the First District concluded that a psychiatrist had a duty to warn the parents of a patient who attacked and killed his father of his potential for violent behavior based upon a fiduciary relationship between the psychiatrist and the parents.

In this case, there are two claims for breach of fiduciary duty: one against Evans arising directly from the counseling relationship and one against the Church Defendants arising from their failure to protect Doe from Evans after she entered the counseling relationship. In fact, the second amended complaint alleges that the Church Defendants were “made aware early in the counseling process that Evans was abusing his position of trust.” Doe does not assert the violation of any tenets of the Episcopal faith as the basis for her breach of fiduciary duty cause of action.

The counselor-counselee relationship has been characterized as a fiduciary one. See Eckhardt v. Charter Hosp., 124 N.M. 549, 953 P.2d 722, 727 (Ct.App.1997) (citing MacDonald v. Clinger, 84 A.D.2d 482, 446 N.Y.S.2d 801, 805 (1982)). As the Colorado Supreme Court has explained, a clergy member who undertakes a counseling relationship creates a fiduciary duty “to engage in conduct designed to improve the [plaintiffs’] marital relationship. As a fiduciary, [the clergy member] was obligated not to engage in conduct which might harm [the plaintiffs’ marital] relationship.” Destefano v. Grabrian, 763 P.2d 275, 284 (Colo.1988). The Colorado Supreme Court also applied this fiduciary relationship to the diocese supervising the clergy member who engaged in sexual relations with the parishioner he was counseling. See id. at 289; see also Martinelli v. Bridgeport Roman Catholic Diocesan Corp., 196 F.3d 409, 430 (2d Cir.1999); Erickson v. Christenson, 99 Or.App. 104, 781 P.2d 383, 386 (1989).

Accordingly, we hold that when a church, through its clergy, holds itself out as qualified to engage in marital counseling and a counseling relationship arises, that relationship between the church and the counselee is one that may be characterized as fiduciary in nature. We thus stress that the liability in this case rests on the assertion of an abuse of a marital counseling relationship through an inappropriate sexual relationship. Further, as to the relationships between Doe and Evans and between Doe and the Church Defendants, it is a question for the jury to determine whether a fiduciary relationship arose; the nature of that relationship; and whether as a result of the Church Defendants’ conduct, there was a breach of the Church Defendants’ duty as fiduciaries to Doe. See Palafrugell, 26 Fla. L. Weekly at D201, - So.2d at -; Uvanile v. Denoff, 496 So.2d 1177, 1178-79 (Fla. 4th DCA 1986); Vest, 480 So.2d at 1333.

The words of the New Jersey Supreme Court in addressing an identical claim are particularly apt in light of the dissenting opinions in this case:

The dissent, nonetheless, would permit a clergyman to victimize a parishioner whose vulnerability has led the parishioner to seek refuge in pastoral counseling. In the final analysis, the dissent simply refuses to accept that pastoral counselors, like psychotherapists, may be liable for breach of a fiduciary relationship with a parishioner.

Ordinarily, consenting adults must bear the consequences of their conduct, including sexual conduct. In the sanctuary of the church, however, troubled parishioners should be able to seek pastoral counseling free from the fear that the counselors will sexually abuse them. Our decision does no more than extend to the defenseless the same protection that the dissent would extend to infants and incompetents.

F.G. v. MacDonell, 150 N.J. 550, 696 A.2d 697, 705 (1997) (citation omitted).

Having concluded that Doe’s breach of fiduciary claim states a cognizable cause of action, we now address whether either the Free Exercise or the Establishment Clause would bar a breach of fiduciary duty claim against the Church Defendants in this case. In Evans, the Fourth District concluded that, as with the claim for negligent hiring and supervision, defining the fiduciary duty the Church Defendants owed to Doe “necessarily involves the secular court in church practices, doctrines, and belief.” 718 So.2d at 293. The Fourth District explained that the Church Defendants’ policies concerning its employees “undoubtedly differ from the rules of another employer, and may require the nonsecular employer to respond differently when faced' with such allegations.” Id. Thus, the Fourth District ruled that determining whether the Church Defendants breached a fiduciary duty owed to Doe would improperly entangle the court in church law, policies, and practices. See id.

In Martinelli the Second Circuit rejected a similar argument that the Free Exercise Clause barred a claim for breach of fiduciary duty between a church and a parishioner, explaining:

To the extent that the jury did consider religious teachings and tenets, moreover, it did so to determine not their validity but whether, as a matter of fact, [the plaintiffs] following of the teachings and belief in the tenets gave rise to a fiduciary relationship between [the plaintiff] and the Diocese. The First Amendment does not prevent courts from deciding secular civil disputes involving religious institutions when and for the reason that they require reference to religious matters....

... Where a person’s beliefs are alleged to give rise to a special legal relationship between him and his church, we may be required to consider with other relevant evidence the nature of that person’s beliefs in order properly to determine whether the asserted relationship in fact exists. In doing so, we judge nothing to be heresy, support no dogma, and acknowledge no beliefs or practices of any sect to be the law.

Martinelli, 196 F.3d at 431.

We agree with the reasoning of the courts that have determined that the evaluation of whether a fiduciary relationship arose and whether a religious organization breached this duty does not require an adjudication of religious doctrine or beliefs. See, e.g., Martinelli 196 F.3d at 431-32; Destefano, 763 P.2d at 284. Thus, allowing Doe’s claim to be adjudicated in a secular court neither infringes upon nor restricts the religious practices of the Church Defendants and thus does not constitute a Free Exercise Clause violation. See Church of Lukumi Babalu Aye v. City of Hialeah, 508 U.S. 520, 533, 113 S.Ct. 2217, 124 L.Ed.2d 472 (1993). Moreover, even assuming that assessing the Church Defendants’ actions or inactions would have an incidental effect of burdening a particular religious practice, see Lukumi Babalu, 508 U.S. at 531, 113 S.Ct. 2217, Doe’s breach of fiduciary duty claim is governed by neutral tort law principles of general application. See Smith v. O’Connell, 986 F.Supp. 73, 81 (D.R.I.1997).

Further, we hold that allowing Doe to bring a breach of fiduciary duty claim against the Church Defendants does not run afoul of the Establishment Clause. The imposition of liability based on a breach of fiduciary duty has a secular purpose and the primary effect of imposing liability under the circumstances of this case neither advances nor inhibits religion. As noted above, the court in this case is not being called upon to interpret ecclesiastical doctrine. Rather, the focus is on whether the Church Defendants had a fiduciary relationship with Doe giving rise to a duty and whether they breached this duty by failing to protect Doe from Evans. Moreover, the resolution of this dispute does not depend on “extensive inquiry by civil courts into religious law and polity,” Serbian Eastern Orthodox Diocese v. Milivojevich, 426 U.S. 696, 709, 96 S.Ct. 2372, 49 L.Ed.2d 151 (1976), or interpretation and resolution of religious doctrine. Thus, we foresee no excessive entanglement based on the allegations of Doe’s amended complaint.

Therefore, we conclude that the First Amendment does not bar consideration of the claims in this case. As we explained in Malicki, “[b]y holding that the First Amendment does not bar the court’s consideration of the parishioners’ allegations, we expressly do not pass on the merits of the underlying case.” Op. at 365. Further, although for purposes of this opinion we have assumed that the romantic involvement was a sexual relationship, this opinion should not be read as determining the sufficiency of the underlying allegations of the operative complaint. On remand, the plaintiff should have the opportunity to amend the complaint to make more specific and definite the allegations of the underlying behavior complained of, and the Church Defendants should have the opportunity to attack the sufficiency of these allegations consistent with this opinion. Accordingly, we quash Evans and remand this case for further proceedings consistent with this opinion.

It is so ordered.

SHAW, ANSTEAD, LEWIS, and QUINCE, JJ., concur.

QUINCE, J., concurs with an opinion, in which ANSTEAD, J., concurs.

WELLS, C.J., and HARDING, J., dissents with opinions.

. Evans did not join in the motion to dismiss and the claims against him remain pending in the trial court. See Evans, 718 So.2d at 287.

. Although the dissenting opinions contend that the operative complaint in this case fails to state a cause of action, the real attack on the complaint is on the vagueness of the term "romantic involvement” in that this term could cover a variety of potentially acceptable or unacceptable behavior. However, the Church Defendants have never raised the issue of whether “romantic involvement” is too vague a term either through a motion to dismiss or a motion for a more definite statement. In fact, although the second amended complaint in this case did not specify the precise nature of the "romantic involvement” that allegedly occurred in this case, all parties’ briefs filed with this Court specifically refer to the involvement as a sexual relationship. Therefore, for purposes of this opinion, we have assumed, consistent with the parties’ briefs, that the term "romantic involvement” refers to a sexual relationship.

. Commentators have explained the power imbalance between counselor and counselee. See Janice D. Villiers, Clergy Malpractice Revisited: Liability for Sexual Misconduct in the Counseling Relationship, 74 Denv. L.Rev. 1, 46 (1996) (listing "six identifiable factors” that aggravate the imbalance of power between the parties in the counseling relationship, including "the counselee’s initial vulnerability; the counselor’s control of the environment; the confidentiality of the relationship; the leverage gained from unilateral self-revelation; the spiritual superiority or worthiness associated with the clergy; and finally, the counselee’s desire to achieve salvation”); Eduardo Cruz, Comment, When the Shepherd Preys on the Flock: Clergy Sexual Exploitation and the Search for Solutions, 19 Fla. St. U.L.Rev. 499, 501 (1991) (explaining that ”[s]exual relationships between clergy and parishioners do not fall within the category of voluntary relationships between consenting adults”).