[Cite as Zhelezny v. Olesh, 2013-Ohio-4337.]


                             IN THE COURT OF APPEALS OF OHIO

                                  TENTH APPELLATE DISTRICT


Vladimir Zhelezny,                                 :

                Plaintiff-Appellant,               :

v.                                                 :                No. 12AP-681
                                                              (C.P.C. No. 11CVC-04-5202)
Arkadiy Olesh et al.,                              :
                                                             (REGULAR CALENDAR)
                Defendants-Appellees.              :



                                         D E C I S I O N

                                  Rendered on September 30, 2013


                Jeffery K. Lucas, for appellant.

                Law Office of Vadim N. Levtonyuk, LLC, and Vadim
                Levtonyuk, for appellees.

                  APPEAL from the Franklin County Court of Common Pleas
CONNOR, J.
        {¶ 1} Plaintiff-appellant, Vladimir Zhelezny ("appellant"), appeals from a
judgment of the Franklin County Court of Common Pleas dismissing his complaint
pursuant to Civ.R. 12(B) and (C).
I. FACTS AND PROCEDURAL HISTORY
        {¶ 2} Defendant-appellee, Grace Evangelical Church ("Grace" or "the church"), is
an Ohio nonprofit corporation. This case arises out of an ongoing dispute between
appellant and the church, its Pastor Arkadiy Olesh, and various church leaders.1

1The named defendants-appellees are: Grace Evangelical Church; Pastor Arkadiy Olesh; Assistant Pastor,
Aleksander Shishlo; church usher Vasily Shishlo; church secretary Genadiy Shishlo; and church members,
Sergey Chmil, Vladimir Chmil, and Yuriy Olesh ("appellees"). Although the complaint also identifies as
defendants, City of Columbus, City Attorney, and Deputy John Doe, the governmental defendant are no
longer parties herein.
No. 12AP-681                                                                                               2


According to appellees, appellant is a disgruntled former member of the church who has
engaged in various forms of public protest against the church and its pastor, which have
resulted in heated arguments, threats of violence and physical confrontations. Appellees
maintain that in 2008, Pastor Olesh sent appellant a letter ("ban letter") informing him
that his access to the church was to be severely restricted for one year. Appellees state
that, at the end of that year, a second letter was sent extending the ban another year.2
           {¶ 3} On April 18, 2010, an unidentified deputy sheriff removed appellant from
church property after an altercation with Sergey Chmil. A charge of criminal trespass was
filed against appellant as a result of the incident but the prosecutor dismissed the case
against appellant on September 13, 2010. Thereafter, in February 2011, appellant was
involved in a physical altercation with Aleksander Shishlo while appellant was at the
church.
           {¶ 4} On April 26, 2011, appellant filed his complaint in this case alleging the
following causes:          (1) assault and battery; (2) extortion; (3) malicious prosecution;
(4) violation of civil rights; (5) civil conspiracy; and (6) intentional infliction of emotional
distress.3 The complaint seeks monetary damages from the church under the doctrine of
respondeat superior.
           {¶ 5} Following a hearing in chambers, the trial court granted appellees' joint
motion for a temporary restraining order on June 20, 2011.                          The order states that
appellant "shall be immediately and temporarily restrained and enjoined from entering
on or trespassing on the property of Grace." Although appellant initially consented to the
restraining order, he subsequently moved the trial court to dissolve the order and to deny
appellees' motion for a preliminary injunction.                   The trial court subsequently denied
appellees' joint motion for a preliminary injunction on the stated grounds that appellees
had not asserted a counterclaim for injunctive relief. (Aug. 2, 2011 Magistrate's Decision.)
           {¶ 6} On November 10, 2011, appellees filed a joint motion to dismiss the
complaint pursuant to Civ.R. 12(B)(1) and (6), 12(C), 12(H)(2) and (3). On July 19, 2012,

2Evidentiary materials in support of appellees' statements of fact are not part of the pleadings in this case
and shall not be considered by the court in reviewing the merits appellees' motion for judgment on the
pleadings.
3   Appellant does not appeal the trial court's dismissal of the extortion claim.
No. 12AP-681                                                                               3


the trial court issued a "Decision and Entry Granting Defendants' Joint Motion for
Judgment on the Pleadings." Therein, the trial court dismissed each of the causes alleged
in the complaint. The trial court also determined that it lacked jurisdiction over several of
appellant's causes of action due to the ecclesiastical abstention doctrine.
II. ASSIGNMENTS OF ERROR
       {¶ 7} Appellant assigns the following as error:
                [I.] The trial court commits error in granting a motion to for
                judgment on the pleadings pursuant to Civ. R. 12(C) when the
                court relies on facts not contained in the pleadings and
                weights the credibility of the evidence.

                [II.] The trial court committed error in granting a Motion to
                Dismiss pursuant to Civ. R. 12(C) finding that there were
                insufficient operative facts when the Complaint contained the
                necessary operative facts to support each claim.

                [III.] The trial court commits error in granting a Motion to
                Dismiss pursuant to Civ. R. 12(C) finding that the claims are
                barred by the applicable statute of limitations.

(Sic passim.)
III. STANDARD OF REVIEW
       {¶ 8} Under Civ.R. 12(C), a party may file a motion for judgment on the pleadings
"[a]fter the pleadings are closed but within such time as not to delay the trial." Franks v.
Ohio Dept. of Rehab. & Corr., 195 Ohio App.3d 114, 2011-Ohi-2048, ¶ 5 (10th Dist.). In
ruling on the motion for judgment on the pleadings, the court is permitted to consider
both the complaint and answer. State ex rel. Midwest Pride IV, Inc. v. Pontious, 75 Ohio
St.3d 565, 570 (1996). When presented with such a motion, a court must construe all the
material allegations of the complaint as true, and must draw all reasonable inferences in
favor of the nonmoving party. Id., citing Peterson v. Teodosio, 34 Ohio St.2d 161, 165
(1973); Whaley v. Franklin Cty. Bd. of Commrs., 92 Ohio St.3d 574, 581 (2001). The
court will grant the motion if it finds, beyond doubt, that the plaintiff can prove no set of
facts in support of the claim(s) that would entitle him or her to relief. State ex rel.
Midwest Pride IV, Inc. at 570.
No. 12AP-681                                                                               4


       {¶ 9} A motion for judgment on the pleadings tests the allegations of the
complaint and presents a question of law. Peterson at 166, citing Conant v. Johnson, 1
Ohio App.2d 133 (4th Dist.1964). Thus, our review of a decision to grant judgment on the
pleadings is de novo. See Rayess v. Educational Comm. for Foreign Med. Graduates, 134
Ohio St.3d 509, 2012-Ohio-5676, ¶ 18, citing Perrysburg Twp. v. Rossford, 103 Ohio
St.3d 79, 2004-Ohio-4362, ¶ 5.
       {¶ 10} Insofar as the trial court determined that it did not have jurisdiction of
claims that involved purely ecclesiastical matters, our review is also de novo. Crosby-
Edwards v. Ohio Bd. of Embalmers and Funeral Dirs., 175 Ohio App.3d 213, 2008-Ohio-
762, ¶ 21 (10th Dist.). Furthermore, 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. See, e.g., Nemazee v.
Mt. Sinai Med. Ctr., 56 Ohio St.3d 109, 110 (1990); Southgate Dev. Corp. v. Columbia
Gas Transmission Corp., 48 Ohio St.2d 211 (1976).
IV. LEGAL ANALYSIS
       {¶ 11} For purposes of clarity, we will consider appellant's assignments of error out
of order. In appellant's third assignment of error, appellant contends that the trial court
erred in ruling that the statute of limitations barred his claims for assault and battery. We
agree with the trial court.
       {¶ 12} Assault is the willful threat or attempt to harm or touch another offensively,
which threat or attempt reasonably places the other in fear of such contact. Smith v. John
Deere Co., 83 Ohio App.3d 398, 406 (10th Dist.1993). Battery is an intentional contact
with another that is harmful or offensive. Love v. Port Clinton, 37 Ohio St.3d 98, 99
(1988); Clime v. M.M.S. Investments, Inc., 10th Dist. No. 91AP-543 (Oct. 8, 1991). "A
person is subject to liability for battery when he acts intending to cause a harmful or
offensive contact, and when a harmful contact results." Love at 99, citing Restatement of
Law 2d, Torts, Section 13, at 25 (1965).
       {¶ 13} R.C. 2305.03(A) provides:
              Except as provided in division (B) of this section and unless a
              different limitation is prescribed by statute, a civil action may
              be commenced only within the period prescribed in sections
              2305.04 to 2305.22 of the Revised Code. If interposed by
No. 12AP-681                                                                                           5


                proper plea by a party to an action mentioned in any of those
                sections, lapse of time shall be a bar to the action.

        {¶ 14} Where defendant's answer asserts a statute of limitations defense, such a
defense is available as grounds for a motion to dismiss brought pursuant to Civ.R. 12(C).
See e.g., Rayess; Anetomang v. OKI Sys. Ltd., 10th Dist. No. 10AP-1182, 2012-Ohio-822.
The statute of limitations for assault and battery is one year. See R.C. 2305.111. See also
Stafford v. Columbus Bonding Ctr., 177 Ohio App.3d 799, 810 (10th Dist.2008). The trial
court determined that the statute of limitations barred many of the claims of assault and
battery alleged in the complaint. In fact, the trial court found that the only timely filed
claim arose out an altercation between appellant and Aleksander Shishlo that allegedly
occurred in February 2011. We agree.
        {¶ 15} Upon review of the complaint, it is clear that each of the allegations of
assault and/or battery , or the threat of such contact, accrued more than one year before
plaintiff filed his complaint. Thus the allegations of plaintiff's complaint conclusively
establish that such claims are barred by the applicable statute of limitations. Appellant
now argues that a different limitations period applies inasmuch as the facts underlying his
claims of assault and battery also support his other claims for relief. Appellant, however,
does not cite any legal precedent that would justify the application of a longer statutory
period. In short, we hold the applicable statute of limitations is the one found in R.C.
2305.11.4 Thus, the trial court did not err in applying the one-year limitations period and
dismissing all but the most recent of appellant's claims for assault and battery.
        {¶ 16} For the foregoing reasons, appellant's third assignment of error is
overruled.
        {¶ 17} In appellant's first assignment of error, appellant contends that the trial
court erred when it relied on matters outside the pleadings in granting appellees' motion
for judgment on the pleadings.           Specifically, appellant contends that the trial court




4 Moreover, the applicable statute of limitations for a civil conspiracy is the statute applicable to the
underlying cause of action. Cully v. St. Augustine Manor, 8th Dist. No. 67601 (Apr. 20, 1995); Davis v.
Clark Cty. Bd. of Commrs., 2d Dist. No. 2011-CA-84, 2013-Ohio-2758, ¶ 19.
No. 12AP-681                                                                               6


erroneously relied on the "ban letter" in dismissing his claim of malicious prosecution and
his timely filed claim for assault and battery. The court agrees.
       A. Assault and Battery
       {¶ 18} Civ.R. 12(C) requires a determination that no material factual issues exist
and that the movant is entitled to judgment as a matter of law. Coleman v. Beachwood,
8th Dist. No. 92399, 2009-Ohio-5560, ¶ 17, citing Burnside v. Leimbach, 71 Ohio App.3d
399, 403 (10th Dist.1991). " 'Under Civ.R. 12(C), dismissal 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., quoting State ex rel. Midwest Pride IV, Inc. at 570.
       {¶ 19} The trial court found that appellant knew, when he entered church property
in February 2011, that he was trespassing on church property and that it was possible that
a church employee would forcibly eject him from the premises. In dismissing the claim
pursuant to Civ.R. 12(C), the court determined that plaintiff either "consented to the
possibility of removal from the premises," or "assumed the risk of physical contact" and
dismissed appellant's remaining claim for assault and battery. (July 19, 2012 Decision
and Entry, 6.) In making this determination, the trial court expressly relied on the text of
the ban letters. (July 19, 2012 Decision and Entry, 4.)
       {¶ 20} Although the ban letters are part of the trial court record as exhibits to the
deposition testimony of Valentina Olesh, the ban letters are not referenced in the
pleadings, nor are they attached as exhibits thereto. Appellant does not acknowledge in
his complaint that he was banned from the church nor does he specifically state that his
membership was revoked. While it is reasonable to infer from the facts set forth in the
complaint that appellant's right to access the church grounds was restricted in some
fashion for a period of time, he still refers the Grace Evangelical Church as "his church."
(Complaint, 27.) Consequently, in the context of ruling upon a motion for judgment on
the pleadings, the trial court erred when it expressly relied on the ban letters in
concluding that appellant knew he was banned from the church in February 2011.
       {¶ 21} Moreover, when the facts alleged in the pleadings are viewed in appellant's
favor, there is no support for a finding either of primary assumption of the risk or consent.
No. 12AP-681                                                                                7


Primary assumption of the risk is a defense typically applied in a negligence case involving
recreational or sporting activities. See Marchetti v. Kalish, 53 Ohio St.3d 95 (1990);
Gallagher v. Cleveland Browns Football Co., 74 Ohio St.3d 427, 431 (1996); 2
Restatement of the Law 2d, Torts, Section 10, at 892 (1977).            Appellant alleges at
paragraph 45 of the complaint that "[o]n or about February, 2011, Shishlo made
unwelcome and unwarranted physical contact on plaintiff by pushing him hard inside of
Grace." Such an allegation, if believed, permits an inference that the physical contact by
Shishlo in February 2011, was non-consensual. Based upon the facts alleged in the
complaint, we hold that the trial court erred when it granted Shishlo's motion for
judgment on the pleadings as to the timely filed claim of battery.
       {¶ 22} Appellant's first assignment of error is sustained as it relates to appellant's
timely filed claim for assault and battery arising from the February 2011, altercation with
Shishlo.
       B. Malicious Prosecution
       {¶ 23} In both appellant's first and second assignments of error, he takes exception
to the trial court's dismissal of his claim for malicious prosecution. Appellant argues in
his first assignment of error that the trial court erred when it considered the ban letters in
ruling upon appellees' motion for judgment on the pleadings, and in his second
assignment of error appellant argues that the trial court erred when it concluded that his
complaint fails to state a claim for relief. We will consider these assignments of error
together as they relate to the malicious prosecution.
       {¶ 24} The claims of malicious criminal prosecution allows the complainant to seek
redress for harm to complainant's dignity and reputation occasioned by the misuse of
criminal proceedings. Froehlich v. Ohio Dept. of Mental Health, 114 Ohio St.3d 286,
2007-Ohio-4161, citing Trussell v. Gen. Motors Corp., 53 Ohio St.3d 142 (1990).
"[M]alicious prosecution in a criminal setting requires proof of three essential elements:
'(1) malice in instituting or continuing the prosecution, (2) lack of probable cause, and (3)
termination of the prosecution in favor of the accused.' " Id. at ¶ 10, quoting Trussell at
146. The absence of probable cause is "the real gist of the action." Melanowski v. Judy,
102 Ohio St. 153, 155 (1921).
No. 12AP-681                                                                               8


       {¶ 25} According to the complaint, appellees falsely prosecuted appellant for a
trespass that allegedly occurred on April 18, 2010. The trial court dismissed appellant's
claim for malicious prosecution because he failed to allege sufficient facts to permit an
inference of either the lack of probable cause or the existence of malice. In making its
ruling, the court expressly relied upon the ban letters. (Trial Court Decision, 8.) The trial
court determined that on April 18, 2010, appellant entered upon church property with
knowledge the he was in violation of the ban letter. (Trail Court Decision, 8.)
       {¶ 26} As noted above, the trial court erred when it considered the contents of the
ban letters in dismissing appellant's claim of assault and battery pursuant to Civ.R. 12(C).
The same is true of the dismissal of the malicious prosecution claim. The trial court erred
when it expressly relied upon the text of the ban letters in finding that appellant
knowingly trespassed on the date in question. The material allegations of the complaint
are as follows:
              55. Usher told Plaintiff that if he called police regarding the
              threat of physical harm on April 18, 2010, that he would tell
              police that Plaintiff was committing criminal trespass and
              would have him prosecuted.

              56. Plaintiff did call 911 regarding the threat of physical harm
              on April 18, 2010.

              57. Usher did tell Franklin County Deputy John Doe that
              Plaintiff was not allowed on the Property of Grace, that he was
              committing criminal trespass.

              58. Usher made these statements despite having knowledge
              that Plaintiff was invited and Usher stating to Plaintiff that he
              was allowed to attend.

              ***

              98. Plaintiff told prosecutor that he had called 911 at the
              church because he was threatened by a member of Grace.

              99. Plaintiff told prosecutor that he had a recording of the
              incident that was confiscated by the Franklin County Sheriff's
              department.
No. 12AP-681                                                                             9


              100. Plaintiff told prosecutor that he had permission to
              attend church.

              101. Prosecutor continued the prosecution of Plaintiff despite
              her knowledge of these facts in the Prior Litigation.

              102. Pastor, Usher, Asst. Pastor, John Doe and Board, jointly
              and severally, encouraged Prosecutor to continue prosecution
              of Plaintiff.
              103. Prosecutor and Pastor, Usher, Asst. Pastor, John Doe
              and/or Board had discussions with Prosecutor and they
              conspired to continue the prosecution against Plaintiff.

              104. Prosecutor, shortly before trial, for unknown reasons,
              dismissed the charges against Plaintiff.

              105. Prosecutor had a lack of bases or probable cause to
              continue the prosecution of Plaintiff.

(Complaint, ¶ 55-58, 98-105.)
       {¶ 27} "Probable cause" is a " 'reasonable ground of suspicion, supported by
circumstances sufficiently strong in themselves to warrant a cautious man in the belief
that the person accused is guilty of the offense with which he is charged.' " Melanowski at
paragraph one of the syllabus, quoting Ash v. Marlow, 20 Ohio 119 (1851). Where
plaintiff establishes lack of probable cause, "the legal inference may be drawn that the
proceedings were actuated by malice." Id. The conduct should be weighed in view of his
situation and of the facts and circumstances which he knew or was reasonably chargeable
with knowing at the time he made the criminal complaint. Id.
       {¶ 28} The relevant allegations of the complaint, when viewed in appellant's favor,
support the inference of the want of probable cause. Indeed, the complaint alleges that on
April 18, 2010, appellant was forcibly removed from the church at the behest of appellees
even though appellees had "invited" him to church on that date and knew he "had
permission to attend church." (Complaint, 58, 100.) If accepted as true, appellant's
allegations gives rise to a cognizable claim of malicious prosecution.
       {¶ 29} And, where the want of probable cause is shown on the face of the
complaint, the existence of malice may be inferred. Melanowski. See also, Gates v.
No. 12AP-681                                                                                10


Kroger, 10th Dist. No. 90AP-837 (April 30, 1991). In Criss v. Springfield Twp., 56 Ohio
St.3d 82 (1990), the Supreme Court of Ohio stated:
              The requirement of malice turns directly on the defendant's
              state of mind. Malice is the state of mind under which a
              person intentionally does a wrongful act without a reasonable
              lawful excuse and with the intent to inflict injury or under
              circumstances from which the law will infer an evil intent. For
              purposes of malicious prosecution it means an improper
              purpose, or any purpose other than the legitimate interest of
              bringing an offender to justice

(Citations omitted.) Id. at 84-85.
       {¶ 30} Appellant claims that appellees initiated and continued to support the
prosecution of a criminal trespass against appellant even though appellees had invited
appellant to the church, clearly permits an inference of an evil intent or improper
purpose. See Coleman v. Beachwood, 8th Dist. No. 92399, 2009-Ohio-5560 (Whether
complainant lied in her criminal complaint for telephone harassment and in her trial
testimony was a factual issue that precluded judgment on the pleadings in plaintiff's
action for malicious prosecution.).
       {¶ 31} Appellees argue, in the alternative, that they cannot be subject to liability for
malicious prosecution inasmuch as a governmental official filed the criminal complaint
against appellant, not appellees. In support of this argument, appellees filed a motion in
this court on December 5, 2012, asking us to take judicial notice that the complaint in
Franklin County Municipal Court case No. 2010 CRB 008377, was filed by an "Officer
complainant."
       {¶ 32} Under Ohio law, "a private citizen can be held liable for malicious
prosecution even where criminal charges were filed by police authorities." See, e.g.,
Wallace v. Noel, 6th Dist. No. WD-09-032, 2009-Ohio-6984, ¶ 43, citing Archer v.
Cachat, 165 Ohio St. 286, 287-88 (1956). Under the settled law, even if we were to take
judicial notice that an "Officer complainant" filed the charges against appellant, we would
still be required to reverse the decision of the trial court as to malicious prosecution.
Accordingly, appellees' motion shall be rendered moot.
       {¶ 33} Based on the foregoing, appellant's second assignment of error is sustained
in part as it relates to the claim of malicious prosecution and the first assignment of error
No. 12AP-681                                                                               11


is sustained in part as to appellant's claim for malicious prosecution and his remaining
claim of assault and battery.
       {¶ 34} In the remainder of appellant's second assignment of error, he argues that
the trial court erred when it dismissed several of his claims both on jurisdictional grounds
pursuant to Civ.R. 12(C). We will consider the jurisdictional issue first.
       C. Subject-Matter Jurisdiction
       {¶ 35} Appellant argues that the trial court erred when it dismissed his claims of
civil rights violations, intentional infliction of emotional distress, and civil conspiracy on
the grounds that the conduct of the church is not subject to judicial scrutiny pursuant to
the ecclesiastic abstention doctrine, also known as the doctrine of church autonomy. The
trial court determined that it lacked jurisdiction of appellant's claims for civil conspiracy
and intentional infliction of emotional distress because the claim "presents ecclesiastical
questions that are inappropriate for this Court to consider." (July 19, 2012 Decision and
Entry, 10-11). One of the stated grounds for dismissal of appellant's civil rights claim was
that "the church's disciplinary decision to ban plaintiff from their religious organization is
an ecclesiastical question that is inappropriate for this Court to review." (July 19, 2012
Decision and Entry, 10.)
       {¶ 36} The First Amendment of the United States Constitution provides that
" 'Congress shall make no law respecting an establishment of religion, or prohibiting the
free exercise thereof.' " Ogle v. Church of God, 153 Fed.Appx. 371, 375 (6th Cir.2005),
quoting First Amendment to United States Constitution. The United States Supreme
Court has held that in matters involving questions of discipline, or of faith, or
ecclesiastical rule, custom, or law, the Free Exercise Clause requires that no civil court
interfere with the determinations of the church's highest adjudicatory authority before
which the matter has been heard. Id., citing Watson v. Jones, 80 U.S. 679 (1871).
       {¶ 37} Under Ohio law, a civil court has subject-matter jurisdiction over a case
involving a religious organization if the dispute is secular rather than ecclesiastical. See,
e.g., Robinson v. Freedom Faith Missionary Baptist Church, 2d Dist. No. 20232, 2004-
Ohio-2607, ¶ 26; Bhatti v. Singh, 148 Ohio App.3d 386, 2002-Ohio-3348 (12th Dist.).
See also Tibbs v. Kendrick, 93 Ohio App.3d 35, 43 (8th Dist.1994). The jurisdictional
query in this case is whether the allegations of civil conspiracy, intentional infliction of
No. 12AP-681                                                                              12


emotional distress, and violations of appellant's civil rights involve secular or
ecclesiastical matters. Appellant argues that all of his claims involve secular matters
which are governed by neutral principles of common law. As noted above, the trial court
is not confined to the allegations of the complaint when determining its subject-matter
jurisdiction, and it may consider any pertinent evidentiary materials, and our review of
the trial court determination is de novo. See, e.g., Nemazee; Southgate Dev. Corp.
       {¶ 38} With respect to appellant's common law tort claims, the evidence in the
record clearly establishes that this dispute is born out of appellant's estrangement from
the church, his objections to the pastor, and his perception that church leadership
mistreated him and his family.         However, it is also evident from the record that
appellant's malicious prosecution claim arises from a single incident that occurred in
April 18, 2010, and that his claim for civil conspiracy arises from the alleged agreement
among several church leaders and members to falsely accuse him of criminal trespass and
to physically assault him in February 2011. The crux of his claim for intentional infliction
of emotional distress is that the conduct of appellees was extreme and outrageous, and
that it caused him serious emotional harm.
       {¶ 39} The ban letters establish that on December 17, 2008, Pastor Olesh severely
restricted appellant's access to the church for a period of one year due to appellant's
"unacceptable and offensive behavior," on December 14, 2008, and for "previous
incidents." In December 20, 2009, Pastor Olesh extended the restrictions for another
year for the stated reason that appellant did not behave "in a Christian manner" on
December 19, 2009.       The ecclesiastic abstention doctrine precludes the court from
adjudicating the merit of the pastor's decision. The record, however, does not contain any
evidence that the ban was extended beyond December 2010.
       {¶ 40} A property owner has a privilege to use force to eject a trespasser. See, e.g.,
Hartwig v. Robinson, 3d Dist. No. 15-97-03 (Oct. 9, 1997); 1 Restatement of the Law 2d,
Torts, Section 77 (1965). However, given the absence of evidence to support a finding that
Pastor Olesh extended the ban into 2011, the court is unable to sustain the trial court's
determination.    See Leyland v. Blataric, 9th Dist. No. CA-741 (Dec. 29, 1977) (the
question whether the plaintiff was a trespasser and whether defendant used excessive
force is generally questions for the jury).
No. 12AP-681                                                                                          13


        {¶ 41} Appellant's claims of malicious prosecution and civil conspiracy may also be
decided independent of any ecclesiastical matters. The issue whether appellees had
probable cause to prosecute appellant for trespassing depends on whether appellant was
invited to the church on April 18, 2010, as he claims in the complaint. The merit of
appellant's assertion can be determined without reference to the governing documents of
the church and without a determination of the merits of the ban.
        {¶ 42} Furthermore, to the extent that the incidents of April 18, 2010, and
February 2011 form the factual basis of appellant's claims for intentional infliction of
emotional distress and civil conspiracy, the present record shows that those claims can be
resolved without the need for an examination of purely ecclesiastical issues. For these
reasons, we hold that the trial court erred when it determined that it was without
jurisdiction of the common law claims of civil conspiracy and intentional infliction of
emotional distress.

        D. 42 U.S. 1983

        {¶ 43} Appellant alleges that appellees conspired with governmental employees to
deny him of his first amendment rights to the free exercise of his religion and freedom of
association.5 In order to establish a Section 1983 claim, appellant must establish two
elements: "(1) the conduct in controversy must be committed by a person acting under
color of state law, and (2) the conduct must deprive the plaintiff of rights, privileges or
immunities secured by the Constitution or laws of the United States." George v. State,
10th Dist. No. 10AP-4, 2010-Ohio-5262, ¶ 29, citing 1946 St. Clair Corp. v. Cleveland, 49
Ohio St.3d 33, 34 (1990).
        {¶ 44} A private party is deemed a state actor if there is a sufficient nexus between
the government and the private party's conduct so that the conduct may be fairly
attributed to the state itself. See Clellan v. Wildermuth, 10th Dist. No. 11AP-452, 2011-
Ohio-6390, ¶ 24, citing Roe v. Franklin Cty., 109 Ohio App.3d 772 (1996). A state law tort
of malicious prosecution is actionable under section 1983 only " 'if it implicates the

5 Appellant's second assignment of error does not specifically reference this claim but appellant argues
that the trial court erred by dismissing it and appellees have responded to the argument. Accordingly, we
will consider the dismissal of appellant's civil rights claim in this appeal.
No. 12AP-681                                                                              14


plaintiff's federal statutory or constitutional rights.' " See Bruker v. City of New York, 92
F.Supp.2d 257, 268 (S.D.N.Y., 2000), quoting Lennon v. Miller, 66 F.3d 416, 425 (2d
Cir.1995). In paragraph 15 of his complaint, appellant alleges that "Pastor, Usher, Asst.
Pastor and Board have taken steps to exclude Plaintiff from the church and church
membership in violation of the official documents of the Church that govern church
affairs." In paragraphs 85-88 of the complaint, appellant alleges:
              85. Grace, Pastor, John Doe and Board denied Plaintiff the
              right to question the Pastor's actions that were in
              contradiction to the governing document of Grace.

              86. Grace, Pastor, John Doe and Board actions were
              intentionally taken against the Plaintiff violated the governing
              document of Grace.

              87. Grace, Pastor, John Doe and Board refused to allow an
              outside Pastor to review the actions of Grace, Pastor, John
              Doe and Board as an independent arbitrator and said refusal
              by Grace, Pastor and Board violate the governing document of
              Grace.

              88. Pastor and Grace, by way of Pastor's actions, made
              remarks against Plaintiff during church services causing
              extreme embarrassment to Plaintiff.

       {¶ 45} In order for appellant to state a free claim, he must allege that appellees
conspired with the sheriff and prosecutor to substantially burden the practice of his
religion by preventing him from engaging in a sincerely held religious belief without any
reasonable justification related to a legitimate public interest. See Shakur v. Schriro, 514
F.3d 878, 884-85 (9th Cir.2008). Here, appellant alleges that the criminal prosecution
"denied [him] free exercise of religion" and "denied [him] free exercise of his right to
peacefully assemble." (Complaint, ¶ 123, 124.)        He does not, however, allege that
appellees' prosecution of the criminal trespass charge has prevented him from practicing
his faith in another church or prevented him from peacefully assembling with willing
church members outside of church property.
       {¶ 46} There is no contention that law governing criminal trespass is facially
biased.   However, the Free Exercise Clause, like the Establishment Clause, extends
beyond facial discrimination. See Church of the Lukumi Babalu Aye, Inc. v. Hialeah, 508
No. 12AP-681                                                                               15


U.S. 520, 534 (1993). The clause " 'forbids subtle departures from neutrality,' " Id.,
quoting Gillette v. United States, 401 U.S. 437, 452 (1971), and "covert suppression of
particular religious beliefs." Id., quoting Bowen v. Roy, 476 U.S. 693, 703 (1986). Official
action that targets religious conduct for distinctive treatment cannot be shielded by mere
compliance with the requirement of facial neutrality. Id., citing Walz v. Tax Comm. of
City of New York, 397 U.S. 664, 696 (1970) (Harlan, J., concurring).
       {¶ 47} On the other hand, federal courts have also recognized that a church is
entitled to stop associating with someone who abandons it. Paul v. Watchtower Bible
and Tract Soc. of New York, Inc., 819 F.2d 875, 883 (9th Cir.1987). Similarly, a church
may warn that it will stop associating with members who do not act in accordance with
church doctrine. Headley v. Church of Scientology Internatl., 687 F.3d 1173, 1180 (9th
Cir.2012).
       {¶ 48} Thus, the inquiry is whether appellees alleged conspiracy with the sheriff
and prosecutor to initiate and continue an unwarranted criminal prosecution against
appellant was motivated by appellees' hostility to appellant's free exercise rights. Thus,
the court must determine whether appellant has the right to worship at Grace and to
associate with other Grace members at church functions. In so doing, the trier of fact
must also determine whether appellees have the right to exclude appellant from the
church and its functions. We do not believe that the trier of fact can make the necessary
determination without re-examining the merits of appellees' decision to ban appellant
from the church. Such an examination certainly requires an interpretation of the church's
governing documents as they relate to church disciplinary issues. When viewed in this
light, it becomes evident that a ruling upon the merits of appellant's civil rights claim will
result in a prohibited judicial review of a church disciplinary decision.
       {¶ 49} In short, even if we were to find that appellees were acting under color of
state law, we hold that the trial court is without jurisdiction over appellant's civil rights
claim. Accordingly, the trial court did not err when it dismissed the civil rights claim due
to the lack of subject-matter jurisdiction.
No. 12AP-681                                                                                              16

        E. Judgment on the Pleadings

        {¶ 50} Appellant's second assignment of error also contends that the trial court
erred by dismissing his claims for intentional infliction of emotional distress, civil
conspiracy and respondeat superior.6

        F. Emotional Distress

        {¶ 51} A claim for intentional infliction of emotional distress requires proof of all
of the following elements: (1) the actor either intended to cause emotional distress or
knew or should have known that actions taken would result in serious emotional distress
to the plaintiff; (2) the actor's conduct was so extreme and outrageous as to go beyond all
possible bounds of decency and was such that it can be considered as utterly intolerable in
a civilized community; (3) the actor's actions were the proximate cause of the plaintiff's
psychic injury; and (4) the mental anguish suffered by the plaintiff is serious and of a
nature that no reasonable person could be expected to endure it. Clellan at ¶ 41, citing
Ashcroft v. Mt. Sinai Med. Ctr., 68 Ohio App.3d 359 (8th Dist.1990).
        {¶ 52} The trial court held that appellant's complaint failed to state a claim for
intentional infliction of emotional distress because the tortuous conduct alleged in the
complaint was either ecclesiastical in nature or it was not extreme and outrageous. With
respect to the requirement that the conduct alleged be "extreme and outrageous," the
Supreme Court of Ohio has cited Restatement of the Law 2d, Torts, Section 46d, at 71, 73
(1965), which provides that "[t]he liability clearly does not extend to mere insults,
indignities, threats, annoyances, petty oppressions, or other trivialities." Clellan at ¶ 42,
citing Yeager v. Local Union 20, Teamsters, Chauffeurs, Warehousemen, & Helpers of
Am., 6 Ohio St.3d 369, 375 (1983) (overruled on other grounds).
        {¶ 53} Under Civ.R. 12(C), the first question for this court is whether appellant's
complaint alleges facts which, if admitted, would permit an inference of extreme and
outrageous conduct. Treinen v. Village of Greenhills, S.D. Ohio No. L1805941 (June 29,
2006), citing Miller v. Currie, 50 F.3d 373, 377-78 (6th Cir.1995). See also Rogers v.

6Having concluded that the trial court did not err when it held that it lacked subject-matter jurisdiction of
appellant's civil rights claim, we need not further address that claim. Appellant's claim of malicious
prosecution was addressed earlier in this decision.
No. 12AP-681                                                                               17


Targot Telemarketing Servs., 70 Ohio App.3d 689 (10th Dist.1990). "[L]iability has been
found only where the conduct has been so outrageous in character, and so extreme in
degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious,
and utterly intolerable in a civilized community." Yeager at 375.
          {¶ 54} We agree with appellees that appellant's complaint raises a number of
ecclesiastic issues in support of the claim for intentional infliction of emotional distress.7
However, even if we disregard such allegations in the analysis, we still believe that the
remaining allegations state a claim for relief. Construing the relevant allegations in
appellant's favor, it is reasonable to conclude that a collective decision by appellees to
prosecute appellant on false criminal charges in 2010, and to commit assault and battery
upon appellant in 2011, is extreme and outrageous conduct.            See Coleman at ¶ 29
(allegation that defendant had falsely accused plaintiff of telephone harassment and had
threatened to publish plaintiff's psychological records in the criminal prosecution
precluded a judgment on the pleadings as to intentional infliction of emotional distress).
Accordingly, the trial court erred when it granted appellees' motion for judgment on the
pleadings as to the claim for intentional infliction of emotional distress.
          G. Civil Conspiracy
          {¶ 55} Civil conspiracy is considered an intentional tort. Morrow v. Reminger &
Reminger Co., L.P.A., 183 Ohio App.3d 40, 60 (10th Dist.2009); O'Brien v. Olmsted Falls,
8th Dist. No. 89966, 2008-Ohio-2658. It consists of " ' "a malicious combination of two
or more persons to injure another in person or property, in a way not competent for one
alone, resulting in actual damages." ' " Id., quoting Kenty v. Transamerica Premium Ins.
Co., 72 Ohio St.3d 415, 419 (1995), quoting LeFort v. Century 21-Maitland Realty Co., 32
Ohio St.3d 121, 126 (1987). Civil conspiracy is derivative in that the claim cannot be
maintained absent an underlying tort that is actionable without the conspiracy. Id.
          {¶ 56} Appellant alleges the following: that appellees "had regular meetings to
discuss Plaintiff and to make plans to deal with Plaintiff" (Complaint, ¶ 22); that "Pastor,
Usher, Asst. Pastor, Board, Sergey, Chmil, [and] Grace * * * expressed anger, malice and
sinister intent toward Plaintiff at these meetings and to the church body" (Complaint,

7   See Complaint, ¶ 85-88.
No. 12AP-681                                                                                                 18


¶ 114); that these same defendants "made plans to continue the prosecution of Plaintiff."
(Complaint, ¶ 117.)
        {¶ 57} Appellant further alleges that "[d]efendants acted in a civil conspiracy * * *
to intentionally inflict emotional distress upon Plaintiff" (Complaint, 122); and that
"Grace, Pastor, * * * and Board determined a course of action against Plaintiff's interest."
(Complaint, ¶ 79.)
        {¶ 58} The portions of the complaint quoted above, combined with the allegations
relevant to each of the individual claims for relief, permit the inference of a civil
conspiracy. Indeed, an agreement among appellees to maliciously prosecute appellant for
a criminal trespass in 2010, commit an assault and battery upon appellant in February
2011, and to inflict serious emotional distress upon appellant, arguably states a claim for
civil conspiracy.      Accordingly, we hold that the trial court erred when it dismissed
appellant's claim of a civil conspiracy pursuant to Civ.R. 12(C).
        {¶ 59} For the foregoing reasons, appellant's second assignment of error is
sustained as to the claims for relief sounding in malicious prosecution, intentional
infliction of emotional distress, and civil conspiracy.8
        H. Respondeat Superior
        {¶ 60} Under the doctrine of respondeat superior, an employer is vicariously liable
for the torts that employees commit within the scope of their employment. Osborne v.
Lyles, 63 Ohio St.3d 326, 329 (1992); Restatement of the Law 2d, Agency, Section 219(1),
at 481 (1958). An employee's intentional torts are within the scope of employment if they
are calculated to facilitate or promote the business for which the employee was hired.
Byrd v. Faber, 57 Ohio St.3d 56, 59 (1991), citing Little Miami Ry. Co. v. Wetmore, 19

8 The applicable statute of limitations for a civil conspiracy is the statute applicable to the underlying cause
of action. Cully v. St. Augustine Manor, 8th Dist. No. 67601 (Apr. 20, 1995); Davis v. Clark Cty. Bd. of
Commrs., 2d Dist. No. 2011-CA-84, 2013-Ohio-2758, ¶ 19. "It is also well settled that assault and battery
cannot be transformed into [an intentional-infliction-of-emotional-distress] subject to a longer statute of
limitations, as such would circumvent the statute of limitations for assault and battery." Stafford v.
Columbus Bonding Ctr, 177 Ohio App.3d 799 ¶ 16 (10th Dist.2008), citing Doe v. First United Methodist
Church, 68 Ohio St.3d 531, 536 (1994). Thus, upon remand, an assault and battery that occurred more than
one year before the filing of the complaint supports neither the claim of civil conspiracy or of intentional
infliction of emotional distress.
No. 12AP-681                                                                               19


Ohio St. 110, 132 (1869); Wynn v. Ohio Dept. of Job & Family Servs., 10th Dist. No.
04AP-163, 2005-Ohio-460, ¶ 6, citing Browning v. Ohio State Hwy. Patrol, 151 Ohio
App.3d 798, 2003-Ohio-1108, ¶ 60 (10th Dist.).           "[I]f the employee tortfeasor acts
intentionally and willfully for his own personal purposes, the employer is not responsible,
even if the acts are committed while the employee is on duty." Browning at ¶ 60. See
also Groob v. Keybank, 108 Ohio St.3d 348, 358, 2006-Ohio-1189, ¶ 58 ("an employer is
not liable under a theory of respondeat superior unless its employee is acting within the
scope of her employment when committing a tort-merely being aided by her employment
status is not enough").
       {¶ 61} In Byrd, the Supreme Court of Ohio found that a cleric's nonconsensual
sexual conduct with a parishioner's spouse was an independent self-serving act that did
not facilitate or promote characteristic church activity, and that the church was not
subject to liability under the doctrine of respondeat superior. Id. at 59-60. The Supreme
Court concluded that intentional acts of the employee must be characteristic of the
church's activities or reasonably foreseeable. Id. See also Mirick v. McClellan, 1st Dist.
No. C-930099 (Apr. 27, 1994). Similarly, in DiPietro v. Lighthouse Ministries, 159 Ohio
App.3d 766, 2005-Ohio-639 (10th Dist.), we concluded that the church was not subject to
respondeat superior liability for a pastor's consensual extramarital sexual affair with
parishioner inasmuch as pastor's conduct was planned in advance, it did not occur on or
near church premises, it did not arise out of the pastor's official counseling duties.
       {¶ 62} However, in Johnson v. Church of the Open Door, 179 Ohio App.3d 532,
2008-Ohio-6054 (9th Dist.), the court held that the genuine issue of material fact
precluded summary judgment for the church where church's pastor encouraged investors
to put money into an unregistered securities program run by church's director of activities
and outreach. The court found that the pastor was arguably acting to increase church
membership by promoting investment in a program run by another church employee. Id.
       {¶ 63} Here, the trial court did not reach the merits of appellant's theory of
vicarious liability inasmuch as it dismissed all of appellant's claims for relief against each
of the individual church employees. Given the fact that we have found that the complaint
states a claim for relief in malicious prosecution, assault and battery, and intentional
No. 12AP-681                                                                                20


infliction of emotional distress, we must now determine whether the church is subject to
vicarious liability under the theory of respondeat superior.
         {¶ 64} Given the allegation of a conspiracy among several church employees,
including Pastor Olesh, Assistant Pastor Aleksander Shishlo, and the church board, to
commit tortuous acts upon appellant, it is permissible to infer that the intentional
conduct was either characteristic of the church's activities or reasonably foreseeable.
Whether appellant can prove his allegations is not for this court to determine in the
review of a ruling under Civ.R. 12(C). Indeed, "the issue of intentional conduct being
within    the   employee's   scope   of   employment    is     ordinarily    a   fact-dependent
determination." Osborne at 330.
V. CONCLUSION
         {¶ 65} Having determined that the trial court erred by dismissing appellant's
claims of intentional infliction of emotional distress, malicious prosecution and civil
conspiracy on jurisdictional grounds, and having further determined that the trial court
erred by granting appellees' motion for judgment on the pleadings as to the timely filed
claim for assault and battery, the claim of malicious prosecution, the claim for intentional
infliction of emotional distress, and the claim for civil conspiracy, we sustain in part
appellant's first and second assignments of error and overrule appellant's third
assignment of error.
         {¶ 66} The judgment of the Franklin County Court of Common Pleas is reversed
and the cause is hereby remanded for further proceedings consistent with this decision.
                                                                            Judgment reversed;
                                                                               cause remanded.

                         KLATT, P.J., and DORRIAN, J., concur.
                              _________________
