William J. Picher v. Roman Catholic Bishop of Portland , 2013 Me. LEXIS 98 ( 2013 )

MAINE SUPREME JUDICIAL COURT Reporter of Decisions
Decision: 2013 ME 99Docket: Ken-12-402
Argued: June 11, 2013
Decided: November 12, 2013
Panel: SAUFLEY, C.J., and ALEXANDER, LEVY, SILVER, MEAD, and GORMAN, JJ.
WILLIAM J. PICHER
v.
ROMAN CATHOLIC BISHOP OF PORTLAND
PER CURIAM
[¶1] William J. Picher appeals from a summary judgment entered in the
Superior Court (Kennebec County, Marden, J.) in favor of the Roman Catholic
Bishop of Portland (the Diocese), a corporation sole, following our remand in
Picher v. Roman Catholic Bishop of Portland (Picher I), 2009 ME 67, 974 A.2d
286.1 Picher argues that the Superior Court erred in granting a summary judgment
to the Diocese on Picher’s claim of fraudulent concealment primarily because the
court (1) did not accord Picher all favorable inferences from the evidence
regarding the Diocese’s knowledge of improper interactions with minors by
Picher’s abuser, Raymond Melville, and (2) applied the elements of fraudulent
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The Diocese cross-appeals, arguing that the court erred in denying its motion for judgment on the
pleadings because Picher’s claim of fraudulent concealment is time barred pursuant to 14 M.R.S. § 859
(2012) and is not subject to the provisions of 14 M.R.S. § 752-C (2012). Because we affirm the court’s
summary judgment in favor of the Diocese, we do not address this issue.
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concealment unduly narrowly. Reviewing the entry of a summary judgment
de novo, Estate of Smith v. Cumberland Cnty., 2013 ME 13, ¶ 12, 60 A.3d 759, we
affirm the judgment.
[¶2] The only claim against the Diocese remaining after our remand is the
intentional tort of fraudulent concealment; no claims sounding in negligence
remain for adjudication. A claim of fraudulent concealment, like any claim of
fraud, is subject to more rigorous pleading requirements not applied to common
law negligence claims. See M.R. Civ. P. 9(b) (“[T]he circumstances constituting
fraud or mistake shall be stated with particularity.”); Bean v. Cummings, 2008 ME
18, ¶ 8, 939 A.2d 676. Additionally, the plaintiff ultimately must prove the
elements of fraudulent concealment by clear and convincing evidence. See Barr v.
Dyke, 2012 ME 108, ¶¶ 16-17, 49 A.3d 1280.
[¶3] Thus, to prevail on a claim for fraudulent concealment, a plaintiff must
prove, by clear and convincing evidence, (1) a failure to disclose, (2) a material
fact, (3) when a legal or equitable duty to disclose exists, (4) with the intention of
inducing another to act or refrain from acting in reliance on the non-disclosure, and
(5) the plaintiff in fact relied upon the non-disclosure to the plaintiff’s detriment.
Id. ¶ 16; Picher I, 2009 ME 67, ¶ 30, 974 A.2d 286. Given these elements, a claim
of fraudulent concealment cannot be proved unless the aggrieved party produces
clear and convincing evidence that the alleged tortfeasor had an obligation to
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disclose known information that would be material in preventing the detriment
allegedly suffered by the aggrieved party. See Throckmartin v. Century 21 Top
Realty, 226 P.3d 793, 809 (Wyo. 2010) (“[O]ne cannot be guilty of fraudulently or
intentionally concealing or misrepresenting facts of which he is not aware.”); see
also Barfield v. Hall Realty, Inc., 232 P.3d 286, 292 (Colo. App. 2010) (requiring
as an element of fraudulent concealment “the defendant’s knowledge that the
[material existing] fact is being concealed”).
[¶4] The summary judgment record before us does not include any
evidence, direct or circumstantial, that the Diocese had knowledge, before or
during the time when Picher was abused, that Melville was a sexual abuser of
minors. The information of which the Diocese may have been aware, which
disclosed no prior sexual abuse by Melville, is not the type of material information
that triggers a duty to disclose. Nor are there facts in the record indicating that the
Diocese had a special or fiduciary relationship with Picher, see Fortin v. Roman
Catholic Bishop of Portland, 2005 ME 57, ¶¶ 29, 32-35, 871 A.2d 1208, or that the
Diocese was aware of Picher’s abuse while it was happening or soon after it
happened, such that the Diocese would have a duty to reveal information to
prevent additional abuse or to afterward communicate with Picher and offer or
suggest that he seek assistance for issues arising from the abuse.
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[¶5] On this record, the Superior Court correctly concluded that Picher
failed to set forth facts that could establish a breach of any duty to disclose a
known material fact and, consequently, Picher did not meet his burden of
establishing a prima facie case that the Diocese had fraudulently concealed
material facts that, if known by Picher or his parents, would have prevented
Picher’s injuries. See Flaherty v. Muther, 2011 ME 32, ¶ 38, 17 A.3d 640.
[¶6] Picher also argues that the court abused its discretion by (1) permitting
him access only to redacted, encoded Diocese records rather than to records
containing the actual names of persons alleged to be victims of clergy sexual abuse
and names of clergy accused of sexual misconduct, and (2) failing to rule on his
motion for leave to depose a particular individual after the close of discovery. No
abuse of discretion is demonstrated in the discovery rulings in this case. See
M.R. Civ. P. 16, 26(c); see also Selby v. Cumberland Cnty., 2002 ME 80, ¶ 12
n.11, 796 A.2d 678 (“Discovery orders are generally reviewed for abuse of
discretion.”); Pattershall v. Jenness, 485 A.2d 980, 985 (Me. 1984) (“The trial
court has wide discretion over discovery matters.”); see generally Nieves-Romero
v. United States, 715 F.3d 375, 380-82 (1st Cir. 2013) (finding no abuse of
discretion when the court granted the defendant’s summary judgment motion
before the expiration of the extended discovery period).
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The entry is:
Judgment affirmed.
______________________________
On the briefs:
Sumner H. Lipman, Esq., and Benjamin J. Tucker, Esq., Lipman & Katz,
P.A., Augusta, and Peter Bickerman, Esq., Readfield, for appellant William
J. Picher
Gerald F. Petruccelli, Esq., and Bradford A. Pattershall, Esq., Petruccelli,
Martin and Haddow, LLP, Portland, for appellee
The Roman Catholic Bishop of Portland
At oral argument:
Peter Bickerman, Esq, for appellant William J. Picher
Gerald F. Petruccelli, Esq., for appellee The Roman Catholic Bishop of
Portland
Kennebec County Superior Court docket number CV-2007-57
FOR CLERK REFERENCE ONLY