Court of Appeals of Missouri, Eastern District, Third Division
from the Circuit Court of St. Louis County 15SL-CC03799
Honorable Kristine Allen Kerr
K. Hoff, Presiding Judge
Doe 122 ("Appellant") appeals from the trial
court's "Order and Judgment"
("Judgment") granting summary judgment in favor of
Marianist Province of the United States (the
"Marianists"), Chaminade College Preparatory, Inc.
("Chaminade") (the Marianists and Chaminade are
hereinafter collectively referred to as
"Respondents"), and Fr. Martin Solma ("Fr.
Solma") on Appellant's claims of sexual abuse
or battery, negligent supervision, intentional failure to
supervise clergy, negligent failure to supervise children,
intentional infliction of emotional distress, and breach of
fiduciary duty. We would affirm the Judgment of the trial
court, but due to the general interest and importance of the
issues on appeal, we transfer the case to the Supreme Court
of Missouri pursuant to Rule 83.02.
and Procedural Background
was born on May 7, 1953 and attended Chaminade as a high
school senior in 1971.At that time, Brother John Woulfe
("Bro. Woulfe"), a Marianist brother, was employed
by Chaminade as a guidance counselor and assigned to provide
college counseling to Appellant. Appellant met with Bro.
Woulfe in his office approximately eight to ten times
throughout his senior year. Over the course of the
appointments, however, Appellant was subjected to several
escalating instances of sexual abuse ranging from Bro.
Woulfe's encouraging Appellant to look through Playboy
magazines in the first session and masturbating while Bro.
Woulfe watched in the second, to Bro. Woulfe masturbating in
front of Appellant and ultimately touching Appellant's
penis and putting his mouth on Appellant's penis in the
Appellant knew the abuse "wasn't right," he
felt shame and guilt and did not tell anyone about it. When
Appellant graduated from Chaminade in the Spring of 1971, the
abuse "was fresh in [his] mind," and he would
"think about it from time to time" because it was
"st[u]ck in [his] mind for a while." Appellant
remembered the abuse through the summer of 1972, but he soon
attempted to "put everything behind [him],"
throwing "anything to do with Chaminade" away and
moving to Arizona. By 1973, Appellant, who "was really
trying to look ahead," alleges he had no further memory
of the abuse.
early 2012, Appellant received a letter from Fr. Solma,
Provincial of the Marianists, which indicated that the
Marianists had received an allegation of sexual abuse against
Bro. Woulfe. The letter "brought the memories back"
to Appellant, and on November 4, 2015, Appellant filed a
petition against Respondents, alleging sexual abuse or
battery in Count I, negligent supervision in Count II,
intentional failure to supervise clergy in Count III,
negligent failure to supervise children in Count IV,
intentional infliction of emotional distress in Count V, and
breach of fiduciary duty in Count VI.
March 14, 2018, following discovery, Respondents filed a
Motion for Summary Judgment ("Motion"), their
Statement of Uncontroverted Material Facts with supporting
exhibits, and a Memorandum in Support of their Motion. As is
relevant to this appeal, they first argued that summary
judgment must be granted on all counts against them because
both applicable statutes of limitations-Section 516.140 RSMo
on the battery count and Section 516.120(4) on the remaining
counts-had expired because Appellant provided no evidence to
show that his memory was repressed so as to toll the
limitations period. See Powel v. Chaminade College
Preparatory, Inc., 197 S.W.3d 576 (Mo. banc 2006).
Second, Respondents argued that Appellant's negligence
claims were barred under Gibson v. Brewer, 952
S.W.2d 239 (Mo. banc 1997), because a determination of
whether a religious entity acts "reasonably"
constitutes an excessive entanglement in religious doctrine,
policy, and administration in violation of the First
Amendment. Third, they argued that summary judgment in their
favor was appropriate on Appellant's intentional failure
to supervise clergy claim because Appellant had admitted in
his deposition "that he has no information that
[Respondents] knew that [Bro.] Woulfe was allegedly abusing
children" prior to Appellant's abuse, and he
presented no other evidence to establish such knowledge.
6, 2018, Appellant filed his Memorandum in Opposition to the
Motion, Objections and Response to the Statement of
Uncontroverted Material Facts, Statement of Additional Facts,
and supporting exhibits. Among the exhibits filed were the
Marianists' personnel records for Bro. Woulfe dating from
approximately 1959 through 1977, which contained evaluations
of Bro. Woulfe and letters to and from him. Additionally,
Appellant filed the deposition, from a companion case against
Respondents, of Fr. Quentin Hakenewerth ("Fr.
Hakenewerth"), former Provincial of the St. Louis
Province, wherein he testified that Bro. Woulfe was removed
from Chaminade in 1977 after he learned of a student's
complaint that Bro. Woulfe made sexual advances toward him.
Appellant also filed the companion-case deposition and report
of Fr. Thomas Doyle ("Fr. Doyle"), Appellant's
expert witness. Fr. Doyle's report explained that, based
upon language used in several documents in Bro. Woulfe's
personnel file, he believed Respondents knew of Bro
Woulfe's history of sexual abuse prior to Appellant's
abuse. Appellant also filed three affidavits which were not
notarized: his affidavit, stating that he had no memory of
Bro. Woulfe's abuse from 1973 until 2012 when he received
Fr. Solma's letter; and the affidavits of two additional
former Chaminade students who both claimed that Bro. Woulfe
had abused them. One of the students, C.M., claimed that he
left Chaminade "before Christmas break in December
1971," but that "[s]hortly before [he] left
Chaminade," he reported Bro. Woulfe's abuse to a
Memorandum in Opposition to Respondents' Motion,
Appellant argued that summary judgment was improper because
Respondents presented no undisputed material facts regarding
whether they knew of Bro. Woulfe's history of abuse prior
to Appellant's abuse, and that a genuine issue of
material fact did exist as to Respondents' prior
knowledge in light of Bro. Woulfe's personnel file and
Fr. Doyle's opinion. Appellant further argued that
summary judgment should not be granted as to his negligence
claims because Gibson is contrary to United States
Supreme Court precedent. Finally, Appellant claimed that the
applicable statutes of limitations did not run because,
contrary to Respondents' claim, he did present evidence
that his memory of the abuse had been repressed until 2012
such that the limitations period did not accrue until that
3, 2018, Respondents filed a motion to strike several of
Appellant's exhibits, including Bro. Woulfe's
personnel file and the unnotarized affidavits of Appellant
and the two former Chaminade students. On October 10, 2018,
Appellant filed a notarized copy of his affidavit, and on
March 8, 2019, the trial court entered its Judgment. Therein,
the trial court granted Respondents' motion to strike as
to the former students' affidavits, denied it as to Bro.
Woulfe's personnel file, and granted summary judgment on
all counts in favor of Respondents. In granting summary
judgment, the trial court determined, inter alia,
that Appellant's negligence claims were barred by
Gibson, that his intentional failure to supervise
claim failed because there was "no competent
evidence" of Respondents' knowledge of Bro.
Woulfe's history of abuse, and that since all counts were
disposed of on other grounds, consideration of the statute of
limitations issue was unnecessary.
March 26, 2019, Appellant filed a Motion to Vacate, Reopen
and Amend Judgment and a Motion to Supplement the Record on
Summary Judgment with notarized affidavits of the two former
Chaminade students. On March 29, 2019, the trial court
granted Appellant's Motion to Reopen the Judgment and his
Motion to Supplement the Record, received the notarized
affidavits, and amended the Judgment to consider the new
exhibits, but left intact its grant of summary judgment in
favor of Respondent on all of Appellant's claims, finding
the affidavits to have no bearing on its prior analysis.
Additional facts relevant to Appellant's points on appeal
will be included as needed below. Appellant's appeal
review of a trial court's grant of summary judgment is
de novo. Penzel Construction Company, Inc. v.
Jackson R-2 School District, 544 S.W.3d 214, 225 (Mo.
App. E.D. 2017). Summary judgment is appropriate only
"when the moving party has demonstrated, on the basis of
facts as to which there is no genuine dispute, a right to
judgment as a matter of law." Id. (quoting
Binkley v. Am. Equity Mortgage, Inc., 447 S.W.3d
194, 196 (Mo. banc 2014)); Rule 74.04(c). We review the
record in the light most favorable to the party against whom
summary judgment was entered. Id.
defendant establishes a prima facie case for summary judgment
by showing any of the following:
(1) facts that negate any one of the elements of a
claimant's cause of action; (2) that the non-movant,
after an adequate period of discovery, has not been able to
produce, and will not be able to produce, evidence sufficient
to allow the trier of fact to find the existence of any one
of the claimant's elements; or (3) that there is no
genuine dispute as to the existence of each of the facts
necessary to support movant's properly pleaded
Id. (quoting Storey v. RGIS Inventory
Specialists, LLC, 466 S.W.3d 650, 654 (Mo. App. E.D.
2015)). Once the movant "has made a prima facie case
showing that he is entitled to judgment as a matter of law
under Rule 74.04(c), the [plaintiff's] only recourse is
to show-by affidavit, depositions, answers to
interrogatories, or admissions on file-that one or more of
the material facts shown by the movant to be above any
genuine dispute is, in fact, genuinely disputed."
Id (quoting ITT Commercial Fin. Corp. v. Mid-Am.
Marine Supply Corp., 854 S.W.2d 371, 381 (Mo. banc
1993)). A "genuine dispute" exists if the record
contains "competent evidence of two plausible, but
contradictory, accounts of essential facts," and in the
summary judgment context, "there is a genuine dispute of
a material fact only if the factual disputes might affect the
outcome of the case." Id. (internal quotations
omitted). "'Genuine' implies that the issue, or
dispute, must be a real and substantial one, and not
consisting merely of conjecture, theory and
possibilities." Bryant v. Bryan Cave, LLP, 400
S.W.3d 325, 331 (Mo. App. E.D. 2013).
of Gibson v. Brewer
Point I, Appellant argues that the trial court erred in
granting summary judgment in favor of Respondents on his
negligent supervision and negligent failure to supervise
children claims because in doing so, the trial court relied
upon Gibson v. Brewer, 952 S.W.2d 239 (Mo. banc
1997), which contravenes federal law and cannot control.
Gibson, the plaintiff alleged that a member of a
Diocese's clergy had sexually abused him, and he filed
claims against the Diocese of, inter alia, negligent
hiring/ordination/retention, negligent failure to supervise,
negligent infliction of emotional distress, and independent
negligence of the Diocese. Id. at 243-44. The trial
court dismissed these counts against the Diocese on the basis
that the claims as alleged infringed upon its rights under
the First Amendment to the United States Constitution.
Id. at 244. The Missouri Supreme Court affirmed,
holding that the Free Exercise and Establishment Clauses of
the First Amendment prohibit courts from entertaining claims
against religious organizations where analyses of the
relevant issues would require a determination on
ecclesiastical matters such as "questions of religious
doctrine, polity, and practice." Id. at 246-48.
In so holding, the Court reasoned that:
Religious organizations are not immune from civil liability
for the acts of their clergy. If neutral principles of law
can be applied without determining questions of religious
doctrine, polity, and practice, then a court may impose
liability. Id. at 246 (internal citations omitted).
Questions of hiring, ordaining, and retaining clergy,
however, necessarily involve interpretation of religious
doctrine, policy, and administration. Such excessive
entanglement between church and state has the effect of
inhibiting religion, in violation of the First Amendment.
Id. at 246-47 (internal citations omitted).
By the same token, judicial inquiry into hiring, ordaining,
and retaining clergy would result in an endorsement of
religion, by approving one model for church hiring,
ordination, and retention of clergy. A church's freedom
to select clergy is protected as a part of the free exercise
of religion against state interference. Ordination of a
priest is a quintessentially religious matter, whose
resolution the First Amendment commits exclusively to the
highest ecclesiastical tribunals of this hierarchical church.
Id. at 247 (internal quotes and citations omitted).
Adjudicating the reasonableness of a church's supervision
of a cleric-what the church 'should know'-requires
inquiry into religious doctrine…[T]his would create an
excessive entanglement, inhibit religion, and result in the
endorsement of one model of supervision. Id. at 247
(internal citations omitted).
appeal, Appellant argues that Gibson should be
disregarded because it misapplies the First Amendment and
runs afoul of United States Supreme Court precedent. This
argument has been considered and consistently rejected by the
Missouri Court of Appeals. See, e.g.,
B.B. v. Methodist Church of Shelbina,
Missouri, 541 S.W.3d 644, 654-56 (Mo. App. E.D. 2017);
John Doe B.P. v. Catholic Diocese of Kansas
City-St. Joseph, 432 S.W.3d 213, 219 (Mo. App. W.D.
2014); Doe v. Roman Catholic Archdiocese of St.
Louis, 347 S.W.3d 588, 595-96 (Mo. App. E.D. 2011)
(similarly finding Gibson to be controlling law in
Missouri). "A claim that the Missouri Supreme Court has
incorrectly decided a previous case or cases is not
cognizable in the Missouri Court of Appeals." John
Doe B.P., 432 S.W.3d at 219. "Missouri's
Constitution expressly states that the Missouri Supreme Court
'shall be the highest court in the state' and that
its 'decisions shall be controlling in all other
courts.'" Doe v. Roman Catholic Diocese of
St. Louis, 311 S.W.3d 818, 822 (Mo. App. E.D.
2010) (quoting Mo. Const. art. V, Section 2). Thus, we are
"'constitutionally bound to follow the most recent
controlling decision of the Missouri Supreme Court,' and
inquiries questioning the correctness of such a decision are
improper." Id. (quoting Independence-Nat.
Educ. Ass'n v. Independence Sch. Dist., 162 S.W.3d
18, 21 (Mo. App. W.D. 2015)). In turn, "a Missouri
Supreme Court interpretation of federal constitutional law
constitutes the controlling law within our state until either
the Missouri Supreme Court or the United States Supreme Court
declares otherwise." Id. (citing Chesapeake
& O. Ry. Co. v. Martin, 283 U.S. 209, 221 (1931)).
held that claims of negligent hiring, ordaining, retention,
or supervision of clergy are not cognizable because such
claims 'necessarily involve interpretation of religious
doctrine, policy, and administration. Such excessive
entanglement between church and state has the effect of
inhibiting religion, in violation of the First
Amendment.'" Doe v. Ratigan, 481 S.W.3d 36,
51-52 (Mo. App. W.D. 2015) (quoting Gibson, 952
S.W.2d at 246-47); see also Doe, 311 S.W.3d at 820,
824 (relying upon Gibson to uphold dismissal of
negligence claims against a Diocese, including claim of
negligent failure to supervise children). Appellant cites to
no binding precedent that allows us to ignore the Missouri
Supreme Court's holding in Gibson, which, in
turn, constitutes controlling law in Missouri that we are
bound to apply. Accordingly, because Appellant's
negligent supervision and negligent failure to supervise
children claims would require interpretation of religion
doctrine, policy, and administration amounting to an
excessive entanglement between church and state, the trial
court did not err in granting summary judgment in favor of
Respondents. Point I is denied.
Knowledge of Bro. Woulfe's Prior Sexual Abuse of
Appellant's Points II and III are related, we address
them together. In Point II, Appellant argues that the trial
court's grant of summary judgment on his intentional
failure to supervise clergy claim was erroneous because
Respondents "failed to support their motion with
statements of 'material fact'" on the issue of
their knowledge of Bro. Woulfe's history of sexual abuse.
In Point III, Appellant further argues that a genuine dispute
exists as to Respondents' prior knowledge of such abuse
in light of Bro. Woulfe's personnel file and Fr.
Doyle's expert opinion. We disagree.
of action for intentional failure to supervise clergy is
established if (1) a supervisor exists; (2) the supervisor
knew that harm was certain or substantially certain to
result; (3) the supervisor disregarded this known risk; (4)
the supervisor's inaction caused damage; and (5) the
other requirements of the Restatement (Second) of Torts,
section 317 are met. Doe, 347 S.W.3d at 591;
Gibson, 952 S.W.2d at 248. To satisfy the knowledge
element, "the victim must present evidence of actual
knowledge by someone at the same managerial level of the
wrongdoer." Weaver v. African Methodist Episcopal
Church, Inc., 54 S.W.3d 575, 585 (Mo. App. W.D. 2001).
his deposition, Appellant testified that he "personally
do[es] not" have any evidence or proof that, prior to
his abuse, Respondents knew Bro. Woulfe engaged in sexual
abuse of other minors, and that he "do[es]n't have
any personal knowledge" that Bro. Woulfe's
supervisors had ever been made aware of such abuse. Relying
on this testimony, Respondents argued in their Motion that,
as Appellant could present no evidence of Respondents'
knowledge of prior abuse, he, "after an adequate period
of discovery, …has not and cannot satisfy [all]
essential elements of his claim for intentional failure to
response, Appellant argued, first, that in relying solely on
Appellant's deposition testimony, Respondents
"failed to present any undisputed material fact on the
issue" of their prior knowledge because "[t]hat a
witness said something in a deposition is not a material
fact." Appellant further argued that, while he did not
dispute that he, personally had no information as to
Respondents' prior knowledge, a genuine issue did exist
as to that fact based upon the remainder of the summary
judgment record. In so arguing, Appellant relied on several
documents from the Marianists' personnel records for Bro.
Woulfe, asserting that the language therein evidenced
Respondents' knowledge of Bro. Woulfe's history of
sexual abuse. These materials included a letter to Bro.
Woulfe dated July 1, 1968 from Brother ...