There are just some legal controversies that hit all of my buttons.  As a diehard Cubs fans (and the fan personally responsible for breaking the Billy Goat curse before the World Series in 2016), the lawsuit from former Cub and World Series MVP Ben Zobrist brings together the Cubs and torts.  It also happens to be really quite interesting in seeking tortious liability.

As reported n the Peoria Journal Star, Zobrist, 40,  is suing his former pastor Bryon Yawn for $6 million. He is accusing Yawn of sleeping with his wife, Julianna Zobrist, a contemporary-Christian singer, after they came to him for marital counseling. Yawn, former pastor at Community Bible Church in Nashville, is accused of stealing money from Yobrist’s charity. Yawn is currently the CEO of Forrest Crain & Co., a Nashville-area business-consulting firm.

The lawsuit claims that Yawn, “while acting in his capacity as pastoral counselor . . . usurped this ministerial-counselor role, violated and betrayed the confidence entrusted to him by the Plaintiff, breached his fiduciary duty” and “deceitfully used his access as counselor to engage in an inappropriate sexual relationship” with Julianna Zobrist. The complaint includes emails from Zobrist pouring out his feelings to Yawn, including his disagreement that there is a “biblical basis for divorce.” It also details how Yawn hit up Zobrist for autographs and tickets while allegedly sleeping with his wife.

The lawsuit explains why Zobrist did not return to the team for “personal reasons.” He apparently learned from the wife of Yawn who discovered one of the “burner phones” allegedly used by her husband and Julianna to hide their affair.

The Plaintiff was scheduled to return playing professional baseball in the summer of 2019. He was unable to do so, however, due to the newly discovered information from Robin Yawn, and his need to turn his focus entirely on repairing his marital relationship. As a consequence, Mr. Zobrist forfeited four months of his 2019 season of his professional baseball contract resulting in approximately eight million dollars of lost income.

The complaint has just two counts:  breach of fiduciary duty and intentional infliction of emotional distress.  The fiduciary claim focuses on Yawn’s work on a charity founded by Zobrist:

In March of 2019, Patriot Forward, the charitable organization founded by the Plaintiff, terminated Mr. Yawn as Executive Director, a position in which Mr. Yawn was paid a salary of $3,500 per month. Despite his termination in March of that year, Mr. Yawn somehow continued to fraudulently receive salary checks until May of 2019 and he cashed these checks with full knowledge that his position had been terminated.

Notably there is no loss of consortium claim which primarily address such loss as the result of accidents and physical injuries in the state.  Zobrist’s wife admitted for the first time that she had an affair with their pastor in their divorce proceedings.

In Tennessee, the tort tracks the common law elements. Medlin v. Allied Inv. Co., 398 S.W.2d 270, 274-75 (Tenn. 1966). Zobrist must satisfy three elements: (1) “the conduct complained of must be intentional or reckless,” (2) “the conduct must be so outrageous that it is not tolerated by civilized society,” and (3) “the conduct complained of must result in serious mental injury.” Bain v. Wells, 936 S.W.2d 618, 622 (Tenn. 1997).

Note, since the standard includes not just intentional but reckless conduct, it would not matter that Yawn did not seek to cause him emotional distress.  The emails and communications show the level of distress for Zobrist who reached out to his pastor, Yawn, to help him — not knowing Yawn was very much part of the problem. Zobrist is deeply religious, did not believe in divorce in such a circumstance, and has three children with Julianna. His texts showed the deep emotional trauma:

Zobrist: “She used the words emotional, verbal and spiritual abuse. I was shocked,” Zobrist texted. “Can’t be 2,000 miles away from her and kids while she’s thinking that about me. I have owned every bit of my sin, but I will not own the abuse angle.”

Yawn: “I’m sure it’s like getting knocked off your feet and into your head. But I can’t imagine what it feels like in this moment. Your (sic) a husband and a father first. That’s who you are.”

What is particularly interesting in the case is that the divorce clearly interrupted (and may ultimately have ended) Zobrist’s professional career. Coming off his stint as MVP in the World Series, Zobrist was deeply loved by Cubs fans and at the very top of his career.  Then, in 2019, he was gone for “personal reasons.” It is hard for an athlete to focus in such a circumstance, particularly a deeply religious athlete who would learn his wife was not only having an affair but an affair with their pastor. He was gone for four months and he lost $8 million in income, according to the lawsuit.