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Doe v. Marianist Province of United States

Court of Appeals of Missouri, Eastern District, Third Division

December 31, 2019

JOHN DOE 122, Appellant,
v.
MARIANIST PROVINCE OF THE UNITED STATES AND CHAMINADE COLLEGE PREPARATORY, INC., Respondents, and FR. MARTIN SOLMA, Defendant.

          Appeal from the Circuit Court of St. Louis County 15SL-CC03799 Honorable Kristine Allen Kerr

          OPINION

          Mary K. Hoff, Presiding Judge

         John 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")[1] 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.[2] 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.

         Factual and Procedural Background

         Appellant 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.[3] 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 last encounter.

         While 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.

         In 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.

         On 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 2000[4] 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.

         On June 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 faculty member.[5]

         In his 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 time.

         On July 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.

         On 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 follows.

         Standard of Review

         Appellate 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.

         A 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 affirmative defense.

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).

         Applicability of Gibson v. Brewer

         In 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.

         In 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).

         On 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)).

         "Gibson 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.

         Respondents' Knowledge of Bro. Woulfe's Prior Sexual Abuse of Minors

         Because 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.

         A cause 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.[6] 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).

         During 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 supervise."

         In 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 ...


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