Philip Doe v. Saint Joseph's Catholic Church ( 2020 )

THIRD DIVISION
MCFADDEN, C. J.,
DOYLE, P. J., and HODGES, J.
NOTICE: Motions for reconsideration must be
physically received in our clerk’s office within ten
days of the date of decision to be deemed timely filed.
https://www.gaappeals.us/rules
DEADLINES ARE NO LONGER TOLLED IN THIS
COURT. ALL FILINGS MUST BE SUBMITTED WITHIN
THE TIMES SET BY OUR COURT RULES.
October 29, 2020
In the Court of Appeals of Georgia
A20A0784. DOE v. SAINT JOSEPH’S CATHOLIC CHURCH et al. DO-028
DOYLE, Presiding Judge.
In 2018, Philip Doe sued Archbishop Wilton Gregory, the Archdiocese of
Atlanta, and Saint Joseph’s Catholic Church based on alleged childhood sexual abuse
he suffered while he was an altar boy at Saint Joseph’s Church in the late 1970s. Doe
alleged that the defendants committed several torts, including maintaining a public
nuisance plus a violation of the Georgia Racketeer Influenced and Corrupt
Organizations (“RICO”) Act.1 The defendants moved to dismiss Doe’s complaint
pursuant to OCGA § 9-11-12 (b) (6), arguing that it was time-barred, and the trial
court granted the motion. Doe now appeals, contending that the trial court erred in its
rulings that (1) his non-nuisance tort and RICO claims were time-barred under OCGA
1
OCGA § 16-14-1 et seq.
§ 9-3-33.1, and (2) the defendants’ conduct in allegedly concealing the presence of
sex offenders in their clergy does not constitute a public nuisance under the law. For
the reasons that follow, we affirm.
We review a trial court’s ruling on a motion to dismiss de novo.
Our role is to determine whether the allegations of the complaint, when
construed in the light most favorable to the plaintiff, and with all doubts
resolved in the plaintiff’s favor, disclose with certainty that the plaintiff
would not be entitled to relief under any state of provable facts.2
Doe’s verified complaint alleges that he was a parishioner at Saint Joseph’s
Church and served there as an altar boy from the approximate ages of 12 to 15.
During this time, Doe was supervised by Father J. Douglas Edwards, who was a priest
assigned to Saint Joseph’s Church by the Archdiocese of Atlanta. Doe alleges that
Edwards sexually molested him approximately eight to ten times during the years
1976 to 1978. Doe experienced shame, anger, and depression as a result of the abuse,
and he did not confront Edwards or the church at the time of the abuse.
In November 2018, the Archbishop of Atlanta — Wilton Gregory — issued a
public statement acknowledging and apologizing for “the damage that young lives
2
(Footnotes and punctuation omitted.) Wolf Creek Landfill, LLC v. Twiggs
County, 337 Ga. App. 211, 211-212 (786 SE2d 862) (2016).
2
have suffered” due to sexual abuse by Catholic clergy. The statement was
accompanied by a list of “credibly accused clergy,” which included Edwards and
shows that prior to his 1975-1981 tenure at Saint Joseph’s, Edwards held positions
at nine different Catholic churches over fourteen years, plus a two-year leave of
absence. According to the list, Edwards died in 1997.
Upon learning about the statement and the naming of Edwards as a “credibly
accused” clergy member, Doe filed the present action against Archbishop Gregory,
the Archdiocese of Atlanta, and Saint Joseph’s church. Doe’s complaint, as amended,
seeks to establish liability on the part of the defendants for maintaining a public
nuisance (Counts 1 and 2); failure to train, supervise, and monitor clergy (Count 3);
negligent retention (Count 4); failure to warn (Count 5); failure to provide security
(Count 6); respondeat superior (Count 7); breach of fiduciary duty (Count 8);
fraudulent misrepresentation and concealment (Counts 9 and 10); and RICO
violations (Count 11). The defendants answered and moved to dismiss Doe’s
complaint on the ground that it was time-barred. Following a hearing, the trial court
entered an order granting the motion to dismiss, giving rise to this appeal.
3
1. In multiple enumerations of error, Doe argues that the trial court erred by
ruling that his non-nuisance claims were time-barred. Based on the claims at issue
and the statutory time limitations on their viability, we disagree.
(a) Applicability of OCGA § 9-3-33.1. We begin by noting that the trial court
ruled that OCGA § 9-3-33.1 acts as a statute of repose and bars Doe’s non-nuisance
tort claims (Counts 3 through 10). OCGA § 9-3-33.1 (a) (2) provides that “any civil
action for recovery of damages suffered as a result of childhood sexual abuse
committed before July 1, 2015, shall be commenced on or before the date the plaintiff
attains the age of 23 years.” The subsection defines “childhood sexual abuse” as “any
act committed by the defendant against the plaintiff” that would constitute a criminal
offense of rape, sodomy, child molestation, pandering, sexual battery, or other similar
enumerated crimes.3 Thus, under this Code section, the time limit applies to actions
for recovery of damages suffered as a result of conduct by the defendant that are sex-
based crimes.4
3
(Emphasis supplied.) OCGA § 9-3-33.1 (a) (1) (listing the covered offenses).
4
See generally Deal v. Coleman, 294 Ga. 170, 173 (1) (a) (751 SE2d 337)
(2013) (“[I]f the statutory text is ‘clear and unambiguous,’ we attribute to the statute
its plain meaning, and our search for statutory meaning is at an end.”), citing
Opensided MRI of Atlanta v. Chandler, 287 Ga. 406, 407 (696 SE2d 640) (2010).
4
Here, Doe does not allege that any of the named defendants (Archbishop
Gregory, the Archdiocese of Atlanta, and Saint Joseph’s church) engaged in conduct
against him that was a criminal offense listed in OCGA § 9-3-33.1 (a) (1).5 None of
the defendants’ alleged conduct amounts to child molestation or other listed sex
crime, so the present action is not one seeking damages for “childhood sexual abuse”
as defined in the statute. Rather, as Doe explains, it is an action more broadly based
on the defendants’ breach of duties they owed to him to protect him as a minor and
parishioner and the defendants’ conduct in allegedly covering up the abuse.
Accordingly, OCGA § 9-3-33.1 does not apply, and any argument that it operated as
a statute of repose is inapposite in this case.
(b) Application of statute of limitation. Given that the specific rule in OCGA
§ 9-3-33.1 does not apply, we turn to the default statute of limitation. Although Doe’s
complaint alleges several different non-nuisance torts, his injuries are to his person
5
The sole exception would be Count 7, which alleges liability on a respondeat
superior/vicarious liability ground. To the extent that Count 7 imputes liability to the
defendants for Edwards’s conduct, that claim is time-barred by OCGA § 9-3-33.1
because it was not filed before Doe turned 23 years old.
5
(as opposed to a property interest), so we look to the two-year statute of limitation for
injuries to the person.6
The statute of limitation begins to run on any given claim on the
date the claim accrues — in other words, on the date that suit on the
claim can first be brought. When the question is raised as to whether an
action is barred by a statute of limitations, the true test to determine
when the cause of action accrued is to ascertain the time when the
plaintiff could first have maintained his action to a successful result.7
Under this rule, Doe was a minor when his injuries occurred. According to the
complaint, Doe was last molested in 1978 (when he was still a minor), and at that
time he had suffered a legally cognizable injury as a result of the defendants’ breach
of their alleged duties to him by failing to train, supervise, and monitor Edwards
(Count 3); negligently retaining Edwards (Count 4); failing to warn Doe (Count 5);
6
See, e.g., OCGA § 9-3-33 (establishing a two-year statute of limitation for
injuries to person with two exceptions inapplicable to this case); Villanueva v. First
American Title Ins. Co., 292 Ga. 630, 632 (740 SE2d 108) (2013) (“[T]his Court
determined that ‘injuries done to the person’ included ‘all actionable injuries to the
individual himself,’ citing physical and bodily injury, injury to the reputation, false
imprisonment, malicious arrest, and injury to one’s health, in contrast to injury done
to the person’s property.”), quoting Hutcherson v. Durden, 113 Ga. 987, 989-990 (39
S.E. 495) (1901).
7
(Punctuation omitted.) Hoffman v. Ins. Co. of North America, 241 Ga. 328,
329 (245 SE2d 287) (1978), quoting Mobley v. Murray County, 178 Ga. 388 (1) (173
S.E. 680) (1934).
6
failing to provide proper security (Count 6); acting as a vicariously liable employer
(Count 7); breaching alleged fiduciary duties owed to Doe (Count 8); and
fraudulently misrepresenting or concealing information regarding Edwards’s
employment or conduct (Count 9, alleging tolling of the statute of limitations). Thus,
as to those counts, his cause of action had accrued against the defendants named in
this suit when he was molested by Edwards in 1978.8
Because Doe was a minor in 1978, the running of any statute of limitation
would be tolled until he reached 18 years of age.9 According to Doe’s complaint, he
reached the age of majority in 1982, so absent any additional tolling, the applicable
statute of limitation would have begun running then, and the non-nuisance counts
would have expired long before he filed this action in 2018.10 Thus, the viability of
8
See Long v. Marino, 212 Ga. App. 113, 113-114 (1) (441 SE2d 475) (1994)
(affirming the grant of summary judgment because the last occurrence of sexual abuse
was more than two years before the action was filed, so the tort claim was time-barred
under the two-year statute of limitation under OCGA § 9-3-33).
9
See OCGA § 9-3-90 (b) (“Except as otherwise provided in Code Section
9-3-33.1, individuals who are less than 18 years of age when a cause of action accrues
shall be entitled to the same time after he or she reaches the age of 18 years to bring
an action as is prescribed for other persons.”).
10
See Bd. of Regents v. Oglesby, 264 Ga. App. 602, 607 (2) (a) (591 SE2d 417)
(2003) (“[The plaintiff’s] cause of action . . . would have accrued when she reached
the age of majority. The time when [the plaintiff] achieved her majority, however, had
7
Doe’s non-nuisance tort claims depends on whether the statute of limitation for those
claims was tolled.
(c) Tolling of statute of limitation. Doe argues that the statute of limitation
should have tolled until 2018, when he first learned that the defendants allegedly
knew of Edwards’s predatory conduct and had allegedly covered up this knowledge
— presumably evidenced by the fact that Edwards held nine different positions plus
a leave of absence over the fourteen years leading up to his placement at Saint
Joseph’s church.
Under OCGA § 9-3-96, “[i]f the defendant or those under whom he claims are
guilty of a fraud by which the plaintiff has been debarred or deterred from bringing
an action, the period of limitation shall run only from the time of the plaintiff’s
discovery of the fraud.” Here, under the facts alleged in the complaint, Doe knew he
had been injured, he knew the identity of the perpetrator, and he was aware of the
church’s inaction. Doe’s lack of knowledge of the defendants’ alleged awareness of
Edwards’ misconduct did not render his tort claims inchoate or otherwise
inactionable, even assuming, as Doe argues, that he held a confidential relationship
long passed when she filed this action . . . and was far beyond the two-year period of
limitations for bringing personal injury actions established in OCGA § 9-3-33.”).
8
with the defendants. Tolling is triggered by a fraud that “conceals a wrong done to a
would-be plaintiff so as to deter or debar the would-be plaintiff from his or her cause
of action, i.e., prevent it from being pursued, and therefore, coming into existence.”11
There is no question that the facts alleged by Doe implicate the defendants in a fraud
“involv[ing] moral turpitude,”12 but to toll the statute of limitation, the fraud must
have prevented Doe from pursuing his claims.13 When Edwards abused Doe, Doe was
aware at that time that the church had breached its duties to him by hiring Edwards,
exposing Doe to Edwards, and failing to protect Doe from Edwards. The defendants’
alleged conduct in tolerating this abuse and keeping it secret from the public and
parishioners did not, as a legal matter, debar Doe from pursuing the tort claims at
issue. That the defendants might have asserted a defense that they were unaware of
Edwards’s predatory conduct did not preclude Doe from maintaining the tort claims
against the defendants before the statute of limitations ran on those claims. Although
Archbishop Gregory’s 2018 statement appears to indicate that such a defense would
11
Rai v. Reid, 294 Ga. 270, 273 (751 SE2d 821) (2013).
12
Shipman v. Horizon Corp., 245 Ga. 808 (267 SE2d 244) (1980).
13
See Rai, 294 Ga. at 273.
9
have been unavailing, this does not mean that Doe’s non-nuisance tort claims were
viable for the first time in 2018.
(d) Statute of limitation as to RICO claims. The application of the RICO statute
of limitation was explained by this Court in Glock, Inc. v. Harper.14
OCGA § 16-14-8 provides a five-year statute of limitation for a
civil action brought for RICO violations. That statute was revised,
effective July 1, 2015, to provide that a civil action “shall be
commenced up until five years after the conduct in violation of a
provision of this chapter terminates.” Before that revision, OCGA §
16-14-8 provided that such a civil action had to be brought within five
years after the conduct terminated “or the cause of action accrues.”
Regarding the pre-July 1, 2015 version of OCGA § 16-14-8, this
Court[, in Blalock v. Anneewakee, Inc.,15] determined that “the statute of
limitation begins to run when the civil RICO cause of action accrues,
which we interpret to mean when the plaintiff discovers, or reasonably
should have discovered, that he has been injured and that his injury is
part of a pattern.” The pattern discovery element has since been
questioned, but otherwise Blalock stated the proper application of the
civil RICO statute of limitation prior to the July 1, 2015 revision.16
14
340 Ga. App. 65 (796 SE2d 304) (2017).
15
206 Ga. App. 676, 678 (1) (426 SE2d 165) (1992).
16
Glock, Inc., 340 Ga. App. at 66 (2).
10
Here, as in Blalock, Doe knew that he was injured by a pattern of misconduct
when the sexual abuse began and continued for three years while the church did
nothing about it. Had Doe sued the defendants in 1978, based on the same abuse and
the same inaction by the church, his action would have had no less viability than it
did in 2018. By the time he reached the age of majority, Doe was aware that the
church was openly recruiting new members and minors despite the clergy’s predation
on him. Thus, the ongoing nature of the abuse from 1975-1978 sufficiently
established a pattern of conduct such that Doe’s RICO action had accrued, and the
statute of limitation ceased tolling at the time he reached the age of majority in
1982.17 Accordingly, the trial court correctly ruled that the RICO claims are time-
barred.
17
See Blalock, 206 Ga. App. at 678 (1) (holding that the RICO claims accrued
by the time the plaintiff reached 18 because the plaintiff “should have been aware that
the physical and sexual abuses he was subjected to over the course of his [3]-year stay
at [the defendant youth treatment center] were part of a pattern of unlawful behavior
by the operators of [the center].”).
11
2. Doe also asserted a claim for public nuisance, which is not governed by a
traditional statute of limitation.18 Doe contends that the trial court erred by ruling as
a matter of law that he failed to state a claim for public nuisance.19 We disagree.
Under OCGA § 41-1-2, “[n]uisances are either public or private. A public
nuisance is one which damages all persons who come within the sphere of its
operation, though it may vary in its effects on individuals. A private nuisance is one
limited in its injurious effects to one or a few individuals.”20 A public nuisance “does
18
See Davis v. City of Forsyth, 275 Ga. App. 747, 750 (2) (621 SE2d 495)
(2005) (“The statute of limitations does not run in favor of public nuisances because
of the impropriety of imputing laches to the public.”) (punctuation omitted).
19
See generally Northway v. Allen, 291 Ga. 227, 229 (728 SE2d 624) (2012)
(“The main consideration of such a motion to dismiss is ‘whether, under the assumed
set of facts, a right to some form of legal relief would exist”’ for the claim asserted.).
We note that “[m]ore than 100 years ago, the Supreme Court of Georgia held that this
statutory definition, which has remained virtually unchanged since 1863, was ‘not
intended to change the common-law definition of a nuisance.’” City of Albany v.
Stanford, 347 Ga. App. 95, 101 n.10 (815 SE2d 322) (2018) (physical precedent
only), Gobeil, J., concurring fully and specially, quoting Hill v. McBurney Oil &
Fertilizer Co., 112 Ga. 788, 793 (3) (38 S.E. 42) (1901). In this appeal, Doe does not
make a material distinction between the statutory and common law public nuisance
claims, and we resolve both the common law and statutory claims together.
20
See generally Cox v. De Jarnette, 104 Ga. App. 664, 674 (2) (123 SE2d 16)
(1961) (“There is perhaps no more impenetrable jungle in the entire law than that
which surrounds the word ‘nuisance.’ It has meant all things to all men, and has been
applied indiscriminately to everything from an alarming advertisement to a cockroach
baked in a pie. There is general agreement that it is incapable of any exact or
12
not mean that the condition allegedly causing the [public] nuisance must have
actually hurt or injured everyone in the area, but it does mean that it must injure those
of the public who actually come in contact with it.”21
Here, Doe alleges that the defendants’ conduct of concealing the presence of
sex offenders within the clergy constituted a public nuisance by endangering the
public and “misleading them about the wholesomeness and safety of the Church’s
activities. . . .” With respect to the direct injury caused by molestation, Doe does not
allege that all or even most people who came into contact with the church
experienced this injury. Thus, the alleged molestation itself was not sufficient to
constitute a public nuisance, even if there were multiple victims over multiple years.22
comprehensive definition.”) (punctuation omitted), quoting Prosser, Law of Torts, 2d
Ed. § 70, p. 389.
21
(Punctuation omitted.) White v. Ga. Power Co., 265 Ga. App. 664, 668 (2)
(595 SE2d 353) (2004), citing City of Douglasville v. Queen, 270 Ga. 770, 774 (514
SE2d 195) (1999) (“‘A public nuisance exists if the act complained of affects rights
which are common to all within a particular area.’”). Compare Atlanta Processing Co.
v. Brown, 227 Ga. 203, 206-207 (1) (b) (179 SE2d 752) (1971) (holding that the
plaintiff stated a claim for public nuisance based on noxious odors wafting from an
animal processing plant); Watkins v. Pepperton Cotton Mills, 162 Ga. 371, 374 (134
S.E. 69) (1926) (“An illustration of a public nuisance is the unauthorized placing of an
obstacle across a public highway.”).
22
See, e.g., White, 265 Ga. App. at 668 (2) (holding that a hazardous boat ramp
was not a public nuisance because it did not harm all who came into contact with it).
13
Further, although Doe points to the moral failing of the church, he does not allege that
church operations had an appreciable blighting effect on the surrounding community,
such as a gambling establishment or unlicensed liquor store.23 As Doe alleges, the
church openly operated as a wholesome place of worship and moral instruction, while
secretly concealing certain predatory conduct by clergy. The effect of this conduct,
if proven, certainly would demonstrate terrible injury to the victims of the abuse, but
it did not harm all persons who came into the sphere of church operations. In fact, as
alleged by the complaint, the public and church community were unaware of the
injuries inflicted by the clergy. This allegation of hidden abuse reflects a grave
hypocrisy by church leaders, but the church operations, as alleged, did not invite, for
example, “idleness, loitering, vagrancy, and . . . a tendency to breed crime and
23
See, e.g., Cronic v. State, 222 Ga. 623, 623-624 (1) (151 SE2d 448) (1966)
(business selling alcohol without a license was alleged to invite “persons of
questionable character; that said business establishment encourage[d] idleness,
loitering, vagrancy, and ha[d] a tendency to breed crime and debauch the morals of
the community”); Gullatt v. State, 169 Ga. 538, 542 (150 S.E. 825) (1929) (“the
maintenance of a gaming-house or a gaming-place is a public nuisance”); Chancey
v. Hancock, 233 Ga. 734, 734 (213 SE2d 633) (1975) (operating a “blind tiger” or
unlicensed liquor store was alleged to have “‘encourage[d] idleness, loitering,
vagrancy and ha[d] a tendency to breed crime and debauch the morals of the
community’”).
14
debauch the morals of the community.”24 Accordingly, based on the allegations in the
complaint, the trial court did not err by concluding that Doe failed to state a claim for
public nuisance.
Judgment affirmed. Hodges, J. concurs. McFadden, C. J., , dissents.
24
Chancey, 233 Ga. at 734.
15
A20A0784. DOE v. SAINT JOSEPH’S CATHOLIC CHURCH et al.
MCFADDEN, Chief Judge, dissenting.
The majority would affirm the dismissal of this action, which arises out of the
Catholic Church’s child sex abuse scandal. It has been brought against the
Archdiocese of Atlanta and others for fraudulently concealing that predation by
shuffling predatory priests from parish to parish. I respectfully dissent from Division
1 (c) of the majority opinion, which holds that the statute of limitations was not
subject to the fraud tolling provision, OCGA § 9-3-96. Consequently, although I
agree with the rest of the majority’s analysis, I disagree with its judgment and would
reverse.
OCGA § 9-3-96 provides: “If the defendant or those under whom he claims are
guilty of a fraud by which the plaintiff has been debarred or deterred from bringing
an action, the period of limitation shall run only from the time of the plaintiff's
discovery of the fraud.” The majority holds the statute inapplicable, reasoning that
under the allegations “in the complaint, Doe knew he had been injured, he knew the
identity of the perpetrator, and he was aware of the church’s inaction” and
consequently that the archdiocese’s conduct “did not, as a legal matter, debar Doe
from pursuing the tort claims at issue.” The majority goes on to hold that the fact that
the archdiocese
might have asserted a defense that they were unaware of Edwards’s
predatory conduct did not preclude Doe from maintaining the tort claims
against the defendants before the statute of limitations ran on those
claims. Although Archbishop Gregory’s 2018 statement appears to
indicate that such a defense would have been unavailing, this does not
mean that Doe’s non-nuisance tort claims were viable for the first time
in 2018.
In support of its analysis, the majority cites Rai v. Reid, 294 Ga. 270, 273 (751 SE2d
821) (2013) and Shipman v. Horizon Corp., 245 Ga. 808 (267 SE2d 244) (1980). I
disagree with that analysis and see nothing in those cases to support it.
The plain meaning of “debar” standing alone would support the majority’s
analysis. See DEBAR, Black’s Law Dictionary (11th ed. 2019) (“debar vb. (15c) To
2
officially prohibit or exclude (someone) from doing, attaining, or having (something),
or from entering a place or condition; to shut out, prevent, or interdict by authority.”).
But the the statute says “debarred or deterred,” and the plain meaning of “deter”
refutes that analysis. See DETERRENCE, Black’s Law Dictionary (11th ed. 2019)
(“deterrence n. (1861) The act or process of discouraging certain behavior,
particularly by fear; esp., as a goal of criminal law, the prevention of criminal
behavior by fear of punishment.”).
As for the cases the majority cites, they set out the scope of OCGA § 9-3-96.
Shipman held, and Rai reaffirmed, that it is applicable
in two different circumstances: (1) where the actual fraud is the
gravamen of the action, and there is tolling until the fraud is discovered
or by reasonable diligence should have been discovered and no other
independent fraudulent act is required; and (2) where the gravamen of
the action is other than actual fraud, in which case a separate
independent actual fraud involving moral turpitude which debars and
deters the plaintiff from bringing his action must be shown.
Rai, 294 Ga. at 271.
In Rai, which was transferred to the Supreme Court because this court split
evenly, 6 to 6, the Court held that the claim fell into neither category. Defendant Rai
had hired someone to murder his daughter-in-law. Ruling out the first circumstance,
the Court held that concealment was “but part and parcel of Rai’s murder-for-hire
3
plan” and so “actual fraud is not the gravamen of the wrongful death action.” Rai, 294
Ga. at 272 (1). Rather, the Rai case was properly analyzed “under the second Shipman
circumstance in which the gravamen of the action is other than actual fraud. But, the
claim fails under this analysis as well.” Rai, 294 Ga. at 273 (1). It failed because the
concealment was not “distinct from the murder conspiracy.” Id. at 274 (1).
Here the gravamen of the claim against the archdiocese is its allegedly
fraudulent conduct. There is no doubt that archdiocese’s conduct is distinct from the
ex-priest’s predation. So I think the first circumstance obtains, the fraud tolling
statute applies, and the claim is entitled to survive the pleading stage.
4