Cherepski v. Walker

Don CHEREPSKI 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

94-1329                                            ___ S.W.2d ___

                    Supreme Court of Arkansas
               Opinion delivered January 16, 1996


1.   Motions -- motion to dismiss treated as one for summary
     judgment -- limitations on review. -- As the parties presented
     affidavits and other matters outside the pleadings to the
     trial court on the motion to dismiss, the appellate court
     treated the motion as one for summary judgment; 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; the court's review was limited 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; the facts were viewed in the light
     most favorable to the party against whom the motion was filed,
     and all doubts and inferences were resolved against the moving
     party. 

2.   Limitation of actions -- affirmative defense -- burden of
     proof. -- It is well settled that a defense of limitation is
     an affirmative defense; 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 was tolled. 

3.   Limitation of actions -- allegations against appellee barred
     on the face of the complaint -- burden shifted to appellant to
     prove that the statute was tolled. -- Where on the face of the
     complaint, it appeared that the allegations of fraudulent
     concealment against the appellee were barred, the burden
     shifted to appellant to prove, by a preponderance of the
     evidence, that the statute of limitations was tolled.

4.   Limitation of actions --  statute barred action against
     appellee -- trial court correctly ruled that no material
     factor was left in dispute. -- Where the record did not
     support appellant's assertion of fraudulent concealment on the
     part of the appellee, and appellant could not avail himself of
     the benefit of tolling of the statute on this basis, the
     evidence left no room for a reasonable difference of opinion
     that the statute barred these claims against appellee;
     therefore, the trial court correctly ruled that no material
     factor was left in dispute.  

5.   Jurisdiction -- appellate court has no jurisdiction over
     ecclesiastical matters -- court would not address claims. --
     Appellant's allegations that the appellees had consistently
     and maliciously interfered with his attempts to obtain an
     annulment and thus made him unable to receive sacraments were
     outside the court's jurisdiction, as the court will not
     entangle itself in ecclesiastical matters; appellant's claims
     were purely religious in nature, the Tribunal of the Diocese
     of Dallas adjudicated his annulment petition, and record
     failed to reveal a compelling state interest that would
     justify application of Arkansas laws in light of the
     constitutional proscriptions against interference with the
     Free Exercise Clause of the First Amendment. 

6.   Torts -- duty owed always a question of law. -- The question
     of what duty is owed is always a question of law.  

7.   Torts -- liability for the acts of another -- appellant's
     claim for breach of fiduciary duty really a claim for the
     nonexistent right of alienation of affection. -- A person is
     ordinarily not liable for the acts of another unless a special
     relationship exists between the two parties; a person standing
     in a fiduciary relationship with another is subject to
     liability to the other for harm resulting from a breach of the
     duty imposed by the relationship; here the appellant did not
     allege that he entrusted any matter to the appellee while he
     served as Chancellor or as judge of the Diocesan Marriage
     Tribunal, and appellee did not become appellant's priest until
     after his wife had filed for divorce; appellant's claim for
     breach of fiduciary duty was nothing more than a claim for
     alienation of affection in disguise and because the
     legislature abolished this tort in 1989, there could be no
     violation of a nonexistent right. 

8.   Action -- clergy malpractice not a recognized cause of action
     -- summary judgment proper. -- Appellant's contention that the
     trial court erred in dismissing his claim for clergy
     malpractice was without merit; appellant characterized this
     claim as a "negligence-based" cause of action, but Arkansas
     does not recognize clergy malpractice as a cause of action; as
     clergy malpractice is not cognizable in this state, summary
     judgment was proper as a matter of law.

9.   Torts -- tort of outrage -- elements of. -- To establish a
     claim for outrage, or intentional infliction of emotional
     distress, a plaintiff must prove: (1) the actor intended to
     inflict emotional distress or knew or should have known that
     emotional distress was the likely result of his conduct; (2)
     the conduct was extreme and outrageous and utterly intolerable
     in a civilized community; (3) the conduct was the cause of the
     plaintiff's distress; and (4) the plaintiff's emotional
     distress was so severe in nature that no reasonable person
     could be expected to endure it.

10.  Torts -- claim for outrage in reality a veiled attempt to
     bring an action for alienation of affection -- trial court
     ruled correctly. -- Even though appellant couched his amended
     complaint in terms of intentional infliction of emotional
     distress, it was clear that his complaint was in essence an
     action for alienation of affection; the real character of the
     claim was of an amatory tort and his attempt to label his
     claim otherwise did not remove it from its true
     characterization as a claim for alienation of affection, which
     the legislature has chosen to abolish as a cause of action;
     the trial court correctly ruled that appellant's claims
     against the appellees left no material factors in dispute.

11.  Civil procedure -- review of trial court's Rule 11
     determination -- requirements of Ark. R. Civ. P. 11. --  
     Review of a trial court's Rule 11 determination is made under
     an abuse of discretion standard; the appellee's contention
     that Rule 11 sanctions should have been imposed against
     appellant and his counsel since they knew, or should have
     known, that all amatory actions were abolished in 1989 was
     without merit where under Rule 11, an attorney signing a
     pleading, motion, or other paper on behalf of a party
     constitutes a certificate that he or she has made a reasonable
     inquiry (1) into the facts supporting the document or
     pleading; (2) into the law supporting the document to ensure
     that it is warranted by existing law or a good faith argument
     for the extension, modification, or reversal of existing law;
     and that he or she (3) did not interpose the document for any
     improper purpose, such as to harass, to cause unnecessary
     delay, or to increase the cost of litigation; the General
     Assembly abolished alienation of affection as a cause of
     action in 1989 and there has been no determination since that
     time as to whether claims such as those asserted here are
     barred by the legislature's abolition of amatory tort; the
     trial court did not abuse its discretion in denying the
     request for sanctions against appellant.


     Appeal from Pulaski Circuit Court, Third Division; John Ward,
Judge; affirmed on direct appeal and cross-appeal.
     Mitchell, Blackstock & Barnes, by:  Jack Waggoner III; and
John D. Ogles, for appellant.
     T. Martin Davis, for appellees Donald and Susan Walker.
     Williams & Anderson, by:  Leon Holmes and Katharine R. Cloud,
for appellee Andrew J. McDonald, Bishop of the Roman Catholic
Diocese of Little Rock, Arkansas.

     Bradley D. Jesson, Chief Justice.01/16/96




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,




94-1329


APPEAL FROM THE PULASKI COUNTY
CIRCUIT COURT, THIRD DIVISION
(93-5354)


HONORABLE JOHN WARD
CIRCUIT JUDGE




AFFIRMED ON DIRECT APPEAL AND
CROSS-APPEAL.




                Bradley D. 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, ___ S.W.2d
___ (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.      
     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 was tolled. Id., citing First Pyramid Life Ins. Co. v.
Stolz, 311 Ark. 313, 843 S.W.2d 842, cert. denied, 114 S. Ct. 290
(1992).  On appeal, Cherepski asserts that the statute was tolled
due to Bishop McDonald's fraudulent concealment.  While such
concealment does suspend the running of the statute of limitations,
the suspension remains in effect only until the party having the
cause of action discovers the concealment or should have discovered
it by the exercise of reasonable diligence. Id.  Cherepski filed
this lawsuit on August 16, 1993.  Thus, for his complaint to have
been timely filed, he must neither have known, nor have been able
to discover through reasonable diligence, the alleged fraudulent
concealment on the part of Bishop McDonald before August 16, 1990. 
     The complaint alleges that, in September of 1988, Bishop
McDonald, aware of the fact that Father Walker had allegedly been
involved in sexual misconduct at the Philadelphia Diocese, brought
him to the Little Rock Diocese.  In 1989, Bishop McDonald extended
Walker's assignment.  In late 1989 or early 1990, Bishop McDonald
assigned Father Walker to Cherepski's church, St. Theresa's.  On
March 6, 1990, Bishop McDonald had a conversation with Cherepski in
which he asked Cherepski not to call any of his priests as
witnesses in the upcoming divorce trial.  On the face of the
complaint, it appears that these allegations against Bishop
McDonald are barred.  Thus, the burden shifted to Cherepski to
prove, by a preponderance of the evidence, that the statute was
tolled.  
     On appeal, Cherepski contends that "examples" of Bishop
McDonald's concealment include his denial in a 1990 deposition that
he had any knowledge of the relationship between Father Walker and
Susan, and Edith Cherepski's letter and "other evidence" showing
that the statement in his deposition was false.  However, paragraph
8 of Cherepski's amended complaint states that he asked Bishop
McDonald to intervene shortly after September of 1989 "to help
remove Walker from his family's life."  Similarly, Edith
Cherepski's letter to Bishop McDonald, in which she complained that
Father Walker "is apparently involved in breaking up" the Cherepski
family, is dated November 17, 1989.  The record simply does not
support Cherepski's assertion of fraudulent concealment on the part
of Bishop McDonald, and he cannot avail himself of the benefit of
tolling of the statute on this basis.  See Alexander v. Flake,
supra.  The evidence leaves no room for a reasonable difference of
opinion that the statute barred these claims against Bishop
McDonald; therefore, the trial court correctly ruled that no
material factor was left in dispute.  Thus, the only remaining
claim against Bishop McDonald is the allegation that he and the
Walkers have interfered with Cherepski's attempts to have his
marriage to Susan annulled.
 
     III. Claims of interference with annulment proceedings
     Cherepski alleges that, since October of 1990, Bishop McDonald
and the Walkers have consistently and maliciously interfered with
his attempts to obtain an annulment.  Because of this interference, 
Cherepski complains that he is unable to have his remarriage
recognized or to receive sacraments.  These claims are outside our
jurisdiction, as we will not entangle ourselves in ecclesiastical
matters.  Gipson v. Brown, 295 Ark. 371, 749 S.W.2d 297 (1988);
Kinder v. Webb, 239 Ark. 1101, 396 S.W.2d 823 (1965).  Nowhere in
Cherepski's amended complaint does he specifically allege a
conspiracy on the part of appellees to have him excommunicated from
the Catholic Church; rather, his claims are purely religious in
nature, as the record indicates that the Tribunal of the Diocese of
Dallas adjudicated his annulment petition.  As in Gipson, the
record in this case fails to reveal a compelling state interest
that would justify application of our laws in light of the
constitutional proscriptions against interference with the Free
Exercise Clause of the First Amendment.  Because Cherepski's claims
of interference with his annulment proceedings and his ability to
receive communion involve matters of church doctrine and
discipline, we will not address them.

                 IV. Claims against the Walkers 
     Through the passage of Act 46 of 1989, the General Assembly
abolished alienation of affection and criminal conversation as
causes of action.  See also Ark. Code Ann.  16-118-106 (Cum. Supp.
1993).  While the Walkers claim that Cherepski's claim is one for
alienation of affection disguised under different labels, Cherepski
asserts that the legislature's abolishment of this tort does not
bar his cause of action.  Particularly, Cherepski contends that his
complaint presents "a question of fact as to whether a fiduciary
relationship existed," and that it states causes of action for
clergy malpractice and outrage.  
     In defending his claims, Cherepski cites Destefano v. Grabian,
763 P.2d 275 (Colo. 1988).  In that case, a husband sued a Catholic
priest and the Diocese of Colorado Springs, alleging that the
priest, from whom the husband and his wife had consulted for
marriage counseling, had induced his wife into engaging in sexual
relations with him.  The husband asserted claims for negligence,
outrage, and breach of fiduciary duty.  The trial court dismissed
the action, and the court of appeals affirmed.  The Colorado
Supreme Court granted certiorari on two issues: (1) whether the
state's heart balm statute barred an action against a person who
assumes the role of marriage counselor when the counseling
relationship results in consensual sexual relations between a
counselor and a counselee; and (2) whether the free exercise clause
of the First Amendment to the United States Constitution prohibits
tort liability for conduct which arose in the context of a
counseling relationship between a clergyman and members of his
congregation.  The Colorado Supreme Court agreed that the
husband's claims for negligence and outrage were essentially claims
for alienation of affection and criminal conversation and were
properly dismissed.  The Destefano court reversed, however, on the
fiduciary duty issue, concluding that the priest, given the nature
of the relationship as a marriage counselor to the couple, owed a
fiduciary duty; that is, he had a duty not to engage in conduct
which might harm the marital relationship.  
     We are not called upon to decide whether a cause of action
would be cognizable in Arkansas in instances involving a counseling
relationship, and the holding in Destefano was clearly premised on
the priest's role as a marriage counselor, not his role as a
priest.  Thus, Destefano is simply not on point here, as it is
undisputed that Father Walker was not acting as the Cherepski's
marriage counselor.  We will now examine the individual claims
against Walker.
     
                        A. Fiduciary duty
     In his brief, Cherepski repeatedly maintains that the question
of whether a fiduciary duty exists is a question of fact.  This is
an incorrect statement of the law.  The question of what duty is
owed is always a question of law.  First Commercial Trust Co. v.
Lorcin Eng'g, 321 Ark. 210, 900 S.W.2d 202 (1995); Keck v. American
Employment Agency Inc., 319 Ark. 294, 652 S.W.2d 2 (1993).
Cherepski asserts that, as a devout Catholic, his trust was imposed
in the integrity of Father Walker, and that Walker had a duty to
promote his spiritual well-being and refrain from taking any action
which would interfere with his spiritual well-being.
     A person is ordinarily not liable for the acts of another
unless a special relationship exists between the two parties. Id.
A person standing in a fiduciary relationship with another is
subject to liability to the other for harm resulting from a breach
of the duty imposed by the relationship.  Restatement (Second) of
Torts  874 (1979); see also Destefano v. Grabian, supra. 
Cherepski has not alleged that he entrusted any matter to Father
Walker while Walker served as Chancellor or as judge of the
Diocesan Marriage Tribunal.  While Walker was eventually assigned
to Cherepski's church, he did not become Cherepski's priest until
after Susan had filed for divorce.  Cherepski cites Adams v. H.L.
Moore, 385 S.E.2d 799 (N.C.App. 1989) and Nelson v. Dodge, 76 R.I.
1, 68 A.2d 51 (1969), in support of his position that Walker owed
him a duty; however, both of these cases involved disputes over
property transactions.  We conclude that Cherepski's claim for
breach of fiduciary duty is nothing more than a claim for
alienation of affection in disguise.  Because the legislature
abolished this tort in 1989, there can be no violation of a
nonexistent right.  Other courts faced with claims for breach of
fiduciary duty in similar factual settings have reached the same
result.  See e.g., Dausch v. Ryske, 52 F.3d 1425 (7th Cir. 1994);
Bladen v. First Presbyterian Church, 857 P.2d 789 (Okla. 1993);
Strock v. Pressnell, 527 N.E.2d 1235 (Ohio 1994). 

                    B. Clergy malpractice             
     Cherepski further contends that the trial court erred in
dismissing his claim for clergy malpractice against Father Walker. 
On appeal, he characterizes this claim as a "negligence-based"
cause of action.  Arkansas does not recognize clergy malpractice as
a cause of action.  Several other courts confronted with this issue
have specifically refused to recognize clergy malpractice as a
separate, cognizable cause of action.  See, e.g. Destefano v.
Grabian, supra; Schieffer v. Catholic Archdiocese, 508 N.W.2d 907
(Neb. 1993).  Other courts have held that clergy malpractice was
not available under the particular facts alleged.  See, e.g. Bladen
v. First Presbyterian Church, supra; Hester v. Barnett, 723 S.W.2d 544 (Mo. App. 1987) see also John F. Wagner, Annotation, Cause of
Action for Clergy Malpractice, 75 A.L.R.4th 750 (Supp. 1995).  As
clergy malpractice is not cognizable in this state, summary
judgment was proper as a matter of law.
     
                           C. Outrage
     We recently set out the elements of the tort of outrage in
Perrodin v. Rooker, 322 Ark. 117, 908 S.W.2d 85 (1995).  To
establish a claim for outrage, or intentional infliction of
emotional distress, a plaintiff must prove: (1) the actor intended
to inflict emotional distress or knew or should have known that
emotional distress was the likely result of his conduct; (2) the
conduct was extreme and outrageous and utterly intolerable in a
civilized community; (3) the conduct was the cause of the
plaintiff's distress; and (4) the plaintiff's emotional distress
was so severe in nature that no reasonable person could be
expected to endure it. Id. at 121. 
     While Cherepski couches his amended complaint in terms of
intentional infliction of emotional distress, it is clear that his
complaint is in essence an action for alienation of affection.  The
complaint is replete with references to the accelerating
"friendship" between Father Walker and Susan, their alleged
adulterous affair, Cherepski's and Susan's eventual divorce, and
Cherepski's resulting emotional pain and suffering.  The real
character of Cherepski's claim is of an amatory tort.  His attempt
to label his claim otherwise does not remove it from its true
characterization as a claim for alienation of affection, which the
legislature has chosen to abolish as a cause of action.  Other
courts have treated similar claims for outrage as veiled attempts
to bring an action for alienation of affection. Destefano v.
Grabian, supra; Bladen v. First Presbyterian Church, supra; Wilson
v. Still, supra; Strock v. Pressnell, supra.  We conclude that the
trial court correctly ruled that Cherepski's claims against the
Walkers left no material factors in dispute.

               V. Cross-appeal - Rule 11 sanctions
     The Walkers cross-appeal the trial court's denial of sanctions
against Cherepski under Ark. R. Civ. P. 11.  The trial court also
denied Cherepski's counter-motion for sanctions against the
Walkers, but Cherepski does not appeal this ruling.  In reviewing
a trial court's Rule 11 determination, we do so under an
abuse of discretion standard.  Ward v. Dapper Dan Cleaners &
Laundry, Inc., 309 Ark. 192, 828 S.W.2d 833 (1992).  The Walkers
contend that Rule 11 sanctions should have been imposed against
Cherepski and his counsel since they knew, or should have known,
that all amatory actions were abolished in 1989.  The Walkers
further assert that the fact that Cherepski's former wife Susan was
named as a defendant proves a vengeful motive.
     Under Rule 11, an attorney signing a pleading, motion, or
other paper on behalf of a party constitutes a certificate that 
he or she has made a reasonable inquiry  (1) into the facts
supporting the document or pleading; (2) into the law supporting
the document to ensure that it is warranted by existing law or a
good faith argument for the extension, modification, or reversal of
existing law; and that he or she (3) did not interpose the document
for any improper purpose, such as to harass, to cause unnecessary
delay, or to increase the cost of litigation. Id. at 194-195, 828 S.W.2d 833.  Since the General Assembly abolished alienation of
affection as a cause of action in 1989, we have not had occasion to
consider whether claims such as those asserted in this case are
barred by the legislature's abolition of amatory torts.  The
parties have cited numerous cases from other jurisdictions who have
considered similar questions.  In sum, we cannot say that the trial
court abused its discretion in denying the request for sanctions
against Cherepski.

     Affirmed on direct appeal and cross-appeal.
     Special Justices Gene Harrelson, Worth Camp, Jr., and Jill R.
Jacoway join in this opinion.
     Glaze, J., concurs.
     Newbern, Corbin, and Brown, JJ., not participating.  





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.



94-1329

Opinion Delivered:  1-16-96













CONCURRING OPINION




                  TOM GLAZE, Associate Justice

     The majority opinion correctly concludes that Mr. Cherepski's
complaint is in essence an action for alienation of affection, and
such an action was abolished by Act 46 of 1989, now compiled as
Ark. Code Ann.  16-118-106 (Supp. 1993).  In my view, this case
ends when this court makes these holdings.  Nonetheless, the
majority opinion further discusses issues concerning the statute of
limitations, claims of negligence and tort of outrage, breach of
fiduciary duty, and clergy malpractice.  While I believe the
majority opinion's discussions of these issues are unnecessary, I
do join in the majority court's ultimate decision upholding the
trial court's order of dismissal of Cherepski's complaint.