Gabriel v. Kladitis

2024 Ohio 4850

• Court: Ohio Court of Appeals
• Decided: September 18, 2024
• Docket: 23 MA 0020
• Status: Published

Opinion

[Cite as Gabriel v. Kladitis, 2024-Ohio-4850.]

IN THE COURT OF APPEALS OF OHIO SEVENTH APPELLATE DISTRICT MAHONING COUNTY

CHRISTEN E. GABRIEL,

Plaintiff-Appellee,

v.

REV. ANTHONY J. KLADITIS, ET AL,

Defendant-Appellant.

OPINION AND JUDGMENT ENTRY Case No. 23 MA 0020

Civil Appeal from the Court of Common Pleas of Mahoning County, Ohio Case No. 2020 CV 01389

BEFORE: Cheryl L. Waite, Carol Ann Robb, Mark A. Hanni, Judges.

JUDGMENT: Affirmed.

Atty. Scott C. Essad and Atty. Douglas W. Ross, Daniel Daniluk, LLC, for Plaintiff- Appellee

Atty. Rhys Brendan Cartwright-Jones, for Defendant-Appellant

Dated: September 18, 2024 –2–

WAITE, J.

{¶1} Appellant Rev. Anthony J. Kladitis appeals a January 18, 2023 judgment

entry of the Mahoning County Court of Common Pleas following a jury trial. Appellant

argues that Appellee did not sufficiently prove that she suffered emotional distress as a

result of his actions in wrongfully obtaining her private medical records. He also argues

that if any claims are found to be reversible, the compensatory damages awarded on that

claim or those claims, and the entire punitive damage award, must be vacated. Based

on our review of this record, Appellant’s arguments are without merit and the judgment of

the trial court is affirmed.

Factual and Procedural History

{¶2} This matter arose due to the parties’ divorce and ensuing custody battle.

The parties had been married for approximately ten years. Prior to filing for divorce, they

were jointly counseled by Dr. Anthony Ciccone, a Licensed Professional Clinical

Counselor. At some point during this counseling, Appellant ceased to participate.

Appellee, however, continued counseling with Dr. Ciccone.

{¶3} The divorce complaint was filed in Mercer County, Pennsylvania. The

parties’ divorce and custody dispute did not proceed amicably. During the fight for

custody, Appellant approached Dr. Ciccone and asked for Appellee’s counseling records,

which he intended to use in the custody case. Dr. Ciccone refused Appellant’s request

and informed him that he would either need to obtain Appellee’s permission or a court

order before those records could be released to him.

{¶4} Appellant was represented in his divorce and custody matter by Attorney

Angelo Papas. Attorney Papas testified that he did not seek to subpoena Appellee’s

Case No. 23 MA 0020 –3–

counseling records, as he did not intend to use them in any way in the divorce or custody

matter. Despite this, Appellant came into possession of an old subpoena that Attorney

Papas had filed in the custody case seeking other information. This old subpoena

included Attorney Papas’ name and contact information. It also contained the case

caption and case number of the divorce and custody cases.

{¶5} Appellant altered the old subpoena by using “wite-out” to remove the name

of the prior recipient and the documents sought by that subpoena. He substituted this

information by hand writing Dr. Ciccone’s name onto the form as the intended recipient

and listed Appellee’s counselling records as the information being requested. Appellant

served the document on Dr. Ciccone, who recognized the case caption, case number,

and Attorney Papas’ name. Dr. Ciccone complied with this altered document and

provided copies of Appellee’s counseling records to Appellant. Appellant, who is a pastor

at an undisclosed church, took these documents to his church, read through them, and

made at least three copies of the documents.

{¶6} In the meantime, Dr. Ciccone became suspicious that something was wrong

with the subpoena. On further inspection, he noticed the obvious “wite-out” lines on the

forms and remembered that Appellant first asked him about obtaining the records on

either August 23, 2018 or August 24, 2018. The subpoena was dated May 17, 2018,

several months prior to that request. When Dr. Ciccone realized the subpoena was

possibly fraudulent, he immediately notified Appellee that her confidential records had

been breached. Appellee was unaware what records the doctor kept, so she asked him

to provide a copy to her to determine what Appellant had discovered from her sessions.

Case No. 23 MA 0020 –4–

{¶7} This fraudulent action on Appellant’s part resulted in two separate

proceedings: a motion to quash was filed in the divorce and custody case, in Mercer

County; and the action was filed in Mahoning County alleging abuse of process,

conversion, and tortious interference. Although not directly at issue in the instant case,

the Mercer County court ordered the subpoena quashed and ordered Appellant to return

the records and all copies to Appellee. Again, Appellant’s trial counsel in that case,

Attorney Papas, testified that he did not request the subpoena and had specifically

informed Appellant that he did not intend to subpoena Appellee’s counseling records.

Around this time, Appellee also reported Dr. Ciccone’s actions to the relevant board of

conduct, which eventually terminated his license.

{¶8} Appellee filed her complaint against both Appellant and Dr. Ciccone on

August 24, 2020. The complaint consisted of nine tort-related claims, some naming only

Appellant, some directed to Dr. Ciccone, and some regarding both defendants. The

altered subpoena was attached to the complaint as exhibit A. Relevant to the claims

against Appellant, the form revealed obvious alteration as to the person the subpoena is

directed towards and what records were sought. It also stated that “[t]his subpoena was

issued at the request of the following person: Name: Angelo A Papas ESQ.” As

previously noted, it is dated May 17, 2018.

{¶9} On January 19, 2021, Appellee voluntarily dismissed all claims against Dr.

Ciccone with prejudice, leaving only the claims against Appellant. The court denied

Appellant’s untimely request for leave to file a motion for summary judgment, as it was

several months late and pre-trial briefs had already been accepted by the court. The

matter proceeded to a jury trial on the following claims: abuse of process (illegally

Case No. 23 MA 0020 –5–

obtaining the records through use of a “fake” subpoena), conversion (taking possession

of and making copies of Appellee’s medical records), and invasion of privacy (obtaining,

reading, and making copies of the records).

{¶10} The jury found in Appellee’s favor on all three claims and awarded

compensatory damages as follows: $1,675 for abuse of process, $5,000 for conversion,

and $50,000 for invasion of privacy. At Appellant’s request, the determination of

compensatory and punitive damages was bifurcated. The jury subsequently returned an

award of $10,000 as punitive damages. Appellee was also awarded $25,573.64 for

attorney fees. Hence, Appellee’s total award was $92,248.64. This timely appeal

followed.

{¶11} Although he failed to seek a stay from the trial court, Appellant sought and

received a stay from this Court. We overruled his request to forgo a supersedeas bond,

however, and ordered him to post a bond in the amount of $92,248.64.

{¶12} On appeal, this case has not proceeded in an expeditious manner. Five

days before Appellee’s brief was due, Appellant filed a notice of voluntary bankruptcy.

This stayed the matter from May 17, 2023 until termination of the bankruptcy proceeding

on February 15, 2024. On February 15, 2024, the case was reactivated and briefing

resumed, although not in a timely fashion.

ASSIGNMENT OF ERROR NO. 1

The compensatory punitive judgments fails [sic] for lack of sufficient

evidence on the issue of whether any act of the defendant proximately

caused damages.

Case No. 23 MA 0020 –6–

{¶13} Appellant begins his argument by contending it was impossible for the jury

to determine whether a reasonable person would have suffered emotional distress from

his actions without knowing what information was included within the medical records.

He concludes that because Appellee’s counseling records were not admitted into

evidence, the verdict in this matter necessarily requires reversal. In addition, while

Appellant concedes that medical treatment is not a prerequisite to proving mental

distress, he complains that if his actions caused the severity of distress Appellee claims,

she would have, at least, sought more intensive therapy than she has chosen.

{¶14} Appellee responds that the law pertaining to invasion of privacy requires

only that she provide evidence of the defendant’s actions, in this case that he wrongfully

obtained, read, and copied her private medical records. The law does not require her to

also provide those private records and present them to eight jurors, which would cause

further trauma to her. While Appellant contends that the medical records, alone, should

not cause distress, Appellee clarifies that these are not ordinary medical records. These

contain notations of her inner-most thoughts made at a time she was particularly

vulnerable, and in what she believed was a confidential process. Appellee stresses that

she need not have sought treatment for her mental distress once the records were shown

to have been obtained without her consent in order to prove her case. Further, she

distinguishes the case on which Appellant relies, as that case involved a woman who had

waived attorney-physician privilege by filing a personal injury claim, squarely placing her

records at issue in the case. See Kahler v. Roetzel and Andress, 10th Dist. No. 1994 WL

250153 (June 7, 1994). Here, Appellee sued after Appellant had obtained her private

records through use of deception. This is the wrongful act that forms the crux of the case.

Case No. 23 MA 0020 –7–

This case is not based on an injury for which the records provide the only proof. This

case is based on the wrongful act, which then caused emotional injury to Appellee.

{¶15} The crux of this issue is whether Appellee sufficiently established that the

intrusion into her personal and private medical records constituted an act which would

cause distress to and offend an ordinary, reasonable person. Although Appellant strongly

downplays his actions calling them “unorthodox and possibly unethical,” he does not deny

that he did, in fact, falsify a document to obtain private medical records he hoped to use

against Appellee. (Appellant’s Reply Brf., p. 5.)

{¶16} Although Appellant contests each of the claims on which he was found

liable, he limits his arguments on appeal to whether Appellee sufficiently proved that she

was damaged. He argues that no reasonable person would suffer mental distress from

his actions. However, as pointed out by Appellee, the claims of abuse of process and

conversion do not require a finding of mental distress. This applies only to the claim of

invasion of privacy.

{¶17} “The three elements of the tort of abuse of process are: (1) that a legal

proceeding has been set in motion in proper form and with probable cause; (2) that the

proceeding has been perverted to attempt to accomplish an ulterior purpose for which it

was not designed; and (3) that direct damage has resulted from the wrongful use of

process.” Kehoe v. Aronson, 2024-Ohio-1875, ¶ 8 (9th Dist.), citing Yaklevich v. Kemp,

Schaeffer & Rowe Co., L.P.A., 68 Ohio St.3d 294 (1994), paragraph one syllabus.

{¶18} We have explained:

Abuse of process must initially be distinguished from malicious

prosecution. The tort of abuse of process arises when one maliciously

Case No. 23 MA 0020 –8–

misuses legal process to accomplish some purpose not warranted by law.

American Jurisprudence 2d (1962) 250, Abuse of Process, Section 1. * * *

Abuse of process does not lie for the wrongful bringing of an action, but for

the improper use, or abuse, of process.

Omran v. Lucas, 2021-Ohio-4592, ¶ 39 (7th Dist.), citing Clermont Environmental

Reclamation Co. v. Hancock, 16 Ohio App.3d 9, 11 (12th Dist. 1984).

{¶19} The Ninth District has noted in a case involving abuse of process that a

“[p]laintiff may only recover those damages which naturally resulted from the defendant's

wrongful acts and this Court cannot consider remote, indefinite or speculative injuries or

damages.” Husa v. Knapp, 2020-Ohio-6986, ¶ 37 (9th Dist.). Appellant fails to explain

how he believes the jury erred in finding him liable for abuse of process, other than in his

erroneous explanation that Appellee has not shown damage. Again, Appellee’s damage

is based on her distress caused by Appellant’s abuse of process.

{¶20} The elements of conversion are: “(1) plaintiff's ownership or right to

possession of the property at the time of the conversion; (2) defendant's conversion by a

wrongful act or disposition of plaintiff's property rights; and (3) damages.” Francisco A.

Mateo MD, Inc. v. Proia, 2023-Ohio-3908, ¶ 68 (7th Dist.). “The plaintiff need not be the

owner but can have some other interest in the property; the first element includes a party

with actual or constructive possession or an immediate right of possession at the time of

conversion.” Id. Once again, Appellant does not contest that conversion occurred in this

matter, only that Appellee did not prove damages; that she cannot show sufficient mental

distress.

{¶21} In Ohio,

Case No. 23 MA 0020 –9–

[t]o be actionable, the invasion of privacy must involve “the

unwarranted appropriation or exploitation of one's personality, the

publicizing of one's private affairs with which the public has no legitimate

concern, or the wrongful intrusion into one's private activities in such a

manner as to outrage or cause mental suffering, shame or humiliation to a

person of ordinary sensibilities.” (Internal Citations Removed.)

Feasby v. Logan, 2023-Ohio-4478, ¶ 13 (3rd Dist.).

{¶22} “ ‘Intrusion upon seclusion’ is based on the ‘right to be left alone.’ * * * It is

‘akin to trespass in that it involves intrusion or prying into the plaintiff's private affairs.’ ”

Id., quoting Killilea v. Sears, Roebuck & Co., 27 Ohio App.3d 163, 166 (10th Dist.1985).

{¶23} The record is replete with evidence demonstrating that Appellee suffered

emotional distress from Appellant’s actions. Appellant argues that Appellee testified “just

having [her records] period is enough that – to know, what the contents were, I mean, just

whatever they said, him knowing and him – his eyes being on them and him being able

to violate me in that way is bad enough” (Trial Tr., p. 194) and that this somewhat

confusing testimony does not support damages for mental suffering, shame or

humiliation. Appellant overlooks what Appellee provided was much more detailed

testimony than simply this statement in support of her claims.

{¶24} While Appellant downplayed what the medical records may contain,

Appellee explained that she was at “her most vulnerable” when she attended therapy

sessions, and told Dr. Ciccone things she had not even told her ex-husband during their

ten years of marriage. (Trial Tr., p. 180.) When she learned of his intrusion into her

Case No. 23 MA 0020 – 10 –

deepest thoughts and into her most private information, she felt “like my whole – like my

whole world stopped.” (Trial Tr., p. 180.)

{¶25} She testified that due to Appellant’s actions she suffered from panic attacks,

has lost sleep, and has nightmares of different scenarios where he terrorizes her using

similar methods. (Trial Tr., p. 193.) She also testified that she has “mental scars” that

affect her daily life. (Trial Tr., p. 192.) Appellee explained that she was an ICU nurse,

but has put her license on hold. She testified that “I was at work, and I just – I mean, I

couldn’t even – I like was an ICU nurse, and I was taking care of people, and I was keeping

them alive. And I couldn’t even do my job.” (Trial Tr., p. 187.) She testified that she

believes she needs additional therapy but has not been able to overcome her fears that

something like this could happen again. She feels she cannot trust anyone, especially a

counselor, as a result of this incident.

{¶26} Appellant admits he obtained Appellee’s private medical records unlawfully,

intending to use them against her in a custody dispute, but contends she cannot have

sustained compensable damages for distress. As Appellee clearly articulated examples

showing her mental distress throughout her testimony that directly resulted from

Appellant’s actions, the record supports an award of damages on all claims. Appellant’s

first assignment of error is without merit and is overruled.

ASSIGNMENT OF ERROR NO. 2

In the alternative punitive damages fail because (a) one or more of the

foregoing torts fail for lack of sufficient evidence and (b) the jury

questionnaires do not indicate to which tort punitive damages attached.

Case No. 23 MA 0020 – 11 –

{¶27} Appellant argues that if this Court finds that any of the claims were

unsupported by sufficient evidence in assignment of error number one, the corresponding

damage award must be reversed. If that occurs, the entire punitive damage award must

also be vacated, because the jury did not specify what portion of the punitive damages

were awarded for each individual claim. Despite the language of the assignment of error,

Appellant does not raise an alternative argument, but one that depends on the success

of his first assignment of error.

{¶28} However, as Appellant’s first assignment of error is overruled, his argument

that the damage award, in part or in whole, may be reversed is moot.

Conclusion

{¶29} Appellant argues that Appellee did not sufficiently prove that she suffered

emotional distress as a result of his actions. He also argues that if any of Appellee’s

claims are found to be reversible, the related compensatory and entire punitive damage

award must be vacated. For the reasons provided, Appellant’s arguments are without

merit and the judgment of the trial court is affirmed.

Robb, P.J. concurs.

Hanni, J. concurs.

Case No. 23 MA 0020 [Cite as Gabriel v. Kladitis, 2024-Ohio-4850.]

For the reasons stated in the Opinion rendered herein, Appellant’s first assignment

of error is overruled and his second assignment is moot. It is the final judgment and order

of this Court that the judgment of the Court of Common Pleas of Mahoning County, Ohio,

is affirmed. Costs to be taxed against the Appellant.

A certified copy of this opinion and judgment entry shall constitute the mandate in

this case pursuant to Rule 27 of the Rules of Appellate Procedure. It is ordered that a

certified copy be sent by the clerk to the trial court to carry this judgment into execution.

NOTICE TO COUNSEL

This document constitutes a final judgment entry.