John Doe B.P. v. Catholic Diocese of Kansas City-St. Joseph , 2014 Mo. App. LEXIS 249 ( 2014 )


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  •             IN THE MISSOURI COURT OF APPEALS
    WESTERN DISTRICT
    JOHN DOE B.P.,                           )
    )
    Appellant,                  )
    )
    v.                                 )   WD76155
    )
    CATHOLIC DIOCESE OF KANSAS               )   Opinion filed: March 11, 2014
    CITY-ST. JOSEPH,                         )
    )
    Respondent.                 )
    APPEAL FROM THE CIRCUIT COURT OF JACKSON COUNTY, MISSOURI
    The Honorable Ann Mesle, Judge
    Before Division Four: James E. Welsh, Chief Judge,
    Joseph M. Ellis, Judge and Larry D. Harman, Special Judge
    John Doe B.P. ("Appellant") appeals from the dismissal of his claims against the
    Catholic Diocese of Kansas City-St. Joseph ("the Diocese") in his action related to
    sexual abuse allegedly suffered at the hands of Father Michael Tierney when Appellant
    was approximately thirteen years old.    For the following reasons, the judgment is
    affirmed.
    As a basis for his petition, Appellant asserted the following basic facts. In the
    early 1970s, Father Tierney was assigned by the Diocese to St. Elizabeth's parish in
    Kansas City, Missouri, where Appellant attended school and went to church. Over time,
    Father Tierney befriended Appellant and his family.     Father Tierney would talk to
    Appellant in the hallways, would ask Appellant for help with various things, and took him
    out to eat at times. Sometime during the 1971-72 school year, Father Tierney asked
    Appellant to help move some things at his mother's home. While in the home of Father
    Tierney's mother, Father Tierney asked Appellant to go to the bedroom and, when
    Appellant refused, Father Tierney tackled Appellant, forcibly held him down, and
    fondled, caressed, and otherwise touched Appellant's chest, buttocks, anus, genitalia,
    and thighs. Appellant repressed the memory of that event until October 2008.
    On September 29, 2010, Appellant filed his petition against Father Tierney and
    the Diocese. With regard to the Diocese, Appellant asserted claims of (I) childhood
    sexual abuse, (II) battery, (III) breach of fiduciary duty/confidential relationship, (IV)
    failure to supervise children, (V) intentional failure to supervise clergy, (VI) negligent
    supervision/retention,     (VII)   constructive      fraud,   (VIII)   fraud,    (IX)   fraudulent
    misrepresentation, (X) conspiracy to commit fraud or constructive fraud, (XI) intentional
    infliction of emotional distress, and (XII) negligent infliction of emotional distress. Those
    claims were likewise asserted against Father Tierney with the exception of the negligent
    supervision of clergy claim.
    The Diocese filed multiple motions seeking to have the various claims against it
    dismissed. Ultimately, the trial court dismissed all of the claims against the Diocese.
    Subsequently, Appellant voluntarily dismissed his claims against Father Tierney without
    prejudice.1 Appellant now brings six points on appeal, challenging the dismissal of
    some of his claims against the Diocese.
    1
    In his third amended petition, Appellant had been allowed to add Thomas Reardon and Msgr. Thomas
    O‟Brien as additional defendants and to assert claims of failure to supervise children against those
    defendants. These claims were likewise voluntarily dismissed by Appellant.
    2
    This Court reviews de novo a trial court's dismissal based upon a failure to state
    a claim upon which relief may be granted. Ward v. West County Motor Co., 
    403 S.W.3d 82
    , 84 (Mo. banc 2013). In conducting our review, the facts contained in the
    petition are treated as true and construed liberally in favor of the plaintiff.                     Doe v.
    Roman Catholic Diocese of St. Louis, 
    311 S.W.3d 818
    , 821 (Mo. App. E.D. 2010). "If
    the petition sets forth any set of facts that, if proven, would entitle the plaintiff[] to relief,
    then the petition states a claim." 
    Ward, 403 S.W.3d at 84
    .
    Appellant's first three points challenge the trial court's dismissal of his claim for
    intentional failure to supervise clergy. 2          Though they make different arguments, the
    differences between them are subtle, and there is a significant amount of overlap. All of
    the claims assert that the trial court interpreted too narrowly the holding of the Missouri
    Supreme Court in Gibson v. Brewer, 
    952 S.W.2d 239
    , 248 (Mo. banc 1997), wherein
    the Supreme Court set forth the elements of a cause of action for intentional failure to
    supervise clergy. "In Gibson, . . . the Missouri Supreme Court held that, although the
    First Amendment barred negligence-based claims against a religious organization for
    2
    The Diocese contends that Appellant abandoned his cause of action for intentional failure to supervise
    clergy by failing to include such a claim in the amended petitions that were filed following the trial court‟s
    dismissal of that claim. “The general rule is that the filing of an amended pleading operates as an
    „abandonment‟ of the original petition.” Beckman v. Miceli Homes, Inc., 
    45 S.W.3d 533
    , 543 (Mo. App.
    E.D. 2001). “Thus, it has been held that an amendment to a pleading abandons any prior pleadings not
    referred to or incorporated into the new pleading, and the abandoned pleading may not be considered for
    any purpose.” 
    Id. (internal quotation
    and citation omitted). An exception to this rule has been
    established, however, where the reason for dismissal of the count is not correctable by an amended
    pleading and re-filing those claims would be a useless procedural gesture. Prayson v. Kansas City
    Power & Light Co., 
    847 S.W.2d 852
    , 859 (Mo. App. W.D. 1992). The trial court dismissed Appellant‟s
    intentional failure to supervise clergy claim because Appellant‟s pleadings reflected that the alleged
    sexual contact occurred in the home of Father Tierney‟s mother and failed to establish that the tortious
    activity occurred on premises owned or controlled by the Diocese or that Father Tierney was using chattel
    owned by the Diocese, as required by Gibson. As a result, the court determined that Appellant failed to
    state a claim for which relief could be granted. Since this problem was not correctable by an amended
    pleading, the inclusion of this claim in Appellant‟s amended petitions would have been a useless
    procedural gesture. See 
    Id. As the
    exception to the abandonment rule is applicable, we decline to
    dispose of Appellant‟s first three points summarily based upon abandonment.
    3
    sexual abuse conducted by one of its clergy, the plaintiff could bring a claim for
    intentional failure to supervise clergy." D.T. v. Catholic Diocese of Kansas City-St.
    Joseph, Case No. WD 76025, 
    2013 WL 5979189
    at *7 (Mo. App. W.D. 2013)
    (emphasis in original). As to the elements of that cause of action, the Missouri Supreme
    Court stated:
    A cause of action for intentional failure to supervise clergy is stated if (1)
    a supervisor (or supervisors) exists (2) the supervisor (or supervisors)
    knew that harm was certain or substantially certain to result, (3) the
    supervisor (or supervisors) 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.
    
    Gibson, 952 S.W.2d at 248
    . Section 317 of the Restatement (Second) of Torts (1965),
    in turn, provides that a master has a duty to control a servant while the servant is acting
    outside the scope of employment and to prevent him from intentionally harming others
    when:
    (a) the servant
    (i) is upon the premises in possession of the master or upon which
    the servant is privileged to enter only as his servant, or
    (ii) is using a chattel of the master, and
    (b) the master
    (i) knows . . . that he has the ability to control his servant, and
    (ii) knows . . . of the necessity and opportunity for exercising such
    control.
    In dismissing Appellant's claim, the trial court noted that a cause of action for
    intentional failure to supervise clergy requires that the underlying misconduct occur on
    premises in possession or control of the Diocese or in a place where Father Tierney
    was only privileged to enter based upon his status as servant of the Diocese. The trial
    4
    court dismissed the claim because Appellant's petition established that the alleged
    sexual misconduct occurred at the home of Father Tierney's mother and did not aver
    that the Diocese owned or had any right to occupy or control that private residence.
    In his first point, Appellant contends that the trial court too narrowly construed the
    premises requirement of Gibson in dismissing his claim for intentional failure to
    supervise clergy. He argues that Father Tierney's mother's house should be considered
    property under Diocese control for the purposes of analyzing a claim under Gibson
    because Appellant was only present at that location because he and his family trusted
    Father Tierney as a priest.
    This Court rejected an identical argument in D.T. v. Catholic Diocese of
    Kansas City-St. Joseph, Case No. WD 76025, 
    2013 WL 5979189
    at *6 (Mo. App.
    W.D. 2013), wherein a different plaintiff asserted a claim against the Diocese based
    upon Father Tierney having sexually assaulted him in the home of Father Tierney's
    mother and in a hotel room. Noting that the Eastern District had rejected a similar
    argument in Doe v. Roman Catholic Archdiocese of St. Louis, 
    347 S.W.3d 588
    , 593
    (Mo. App. E.D. 2011), this Court concluded that neither Father Tierney's mother's home
    nor the hotel room could be considered property possessed by the Diocese or property
    upon which Father Tierney was privileged to enter only because of his status as a priest
    as required by Gibson. 
    Id. The fact
    that Appellant decided to go to the home of Father
    Tierney's mother and to the hotel room because of Father Tierney's status as a priest
    did not alter that fact. 
    Id. For the
    same reasons we rejected this argument in D.T., we must reject
    Appellant's claim in the case at bar. The fact that Appellant chose to go to the house
    5
    because Father Tierney was a priest does not establish Diocese control of the property
    or that Father Tierney was privileged to enter upon that property only because of his
    status as an employee of the Diocese. Point denied.
    In his second point, Appellant argues that his averments related to "grooming"
    activity that had occurred on Diocese property prior to the incident in the home were
    sufficient to satisfy the premise requirement of Gibson. Appellant claims that Father
    Tierney's actions in befriending him and obtaining his trust were inseparable from the
    incident of sexual abuse that later occurred in the home of Father Tierney's mother.
    Identical arguments to those advanced by Appellant have previously been
    rejected by both the Western and Eastern Districts of this Court in D.T. v. Catholic
    Diocese of Kansas City-St. Joseph, Case No. WD 76025, 
    2013 WL 5979189
    at *6
    (Mo. App. W.D. 2013), and Doe v. Roman Catholic Archdiocese of St. Louis, 
    347 S.W.3d 588
    , 593 (Mo. App. E.D. 2011). "The so-called 'grooming' cited by [Appellant]
    does not qualify as sexual abuse, and, as such, does not satisfy the fifth requirement of
    a claim for intentional failure to supervise, which requires the sexual abuse to occur on
    property possessed by the church." 
    Doe, 347 S.W.3d at 593
    . Further, none of the case
    law cited by Appellant supports his claim that the "grooming" activities, which were
    otherwise innocent and some of which occurred on property belonging to the Diocese,
    were inseparable from the ultimate acts of sexual abuse alleged to have occurred in the
    home of Father Tierney's mother. D.T., 
    2013 WL 5979189
    at *6. Point denied.
    In his third point, Appellant contends that the trial court misinterpreted Gibson as
    holding that section 317 of the Restatement (Second) of Torts is the only mechanism
    available for finding an employer of clergy responsible for the torts of its employee that
    6
    are committed outside the scope of employment. He claims that Gibson left open the
    potential for other mechanisms to give rise to a claim for intentional failure to supervise
    clergy. This Court addressed, at length, arguments mirroring those now advanced by
    Appellant in D.T. v. Catholic Diocese of Kansas City-St. Joseph, Case No. WD
    76025, 
    2013 WL 5979189
    at *7-12 (Mo. App. W.D. 2013).                 In short, Appellant is
    incorrect that the language of Gibson would allow for other elements to be substituted in
    favor of Section 317 of the Restatement (Second) of Torts (1965). 
    Id. at *11.
    "[O]ur
    Supreme Court has announced a very specific number of elements that must be
    satisfied in order to establish the tort of intentional failure to supervise clergy," and
    "[p]ursuant to the mandate of the Missouri Constitution, once the elements of this cause
    of action have been announced by the Missouri Supreme Court, only that court may
    modify the elements." 
    Id. This Court
    is not at liberty to adopt alternative elements to
    the tort of intentional failure to supervise clergy established in Gibson. 
    Id. at 12.
    Point
    denied.
    In his fourth point, Appellant generally contends that the trial court erred in
    dismissing his claims because the trial court misinterpreted Gibson as precluding
    supervisory torts, aside from intentional failure to supervise clergy, whether based on
    intentional or negligent actions, from being brought against the Diocese. He further
    generally contends that "Gibson specifically recognizes that liability against a religious
    entity will lie in circumstances that include those found in this case."
    Appellant had multiple claims dismissed by the trial court in multiple different
    orders. By failing to identify, in his point relied on or in his argument, what ruling or
    rulings on the part of the trial court he claims to be erroneous or what specific cause or
    7
    causes of action were improperly dismissed, Appellant fails to comply with the
    requirements of Rule 84.04. "Under Rule 84.04, it is not proper for the appellate court
    to speculate as to the point being raised by the appellant and the supporting legal
    justification and circumstances." Willis v. Missouri Farm Bureau Servs., Inc., 
    396 S.W.3d 451
    , 454 (Mo. App. W.D. 2013) (internal quotation omitted). "Speculation on an
    appellant's arguments is not permitted by the appellate courts because such speculation
    would cast the court in the role of an advocate for the appellant." 
    Id. (internal quotation
    omitted). Unable to discern, without resorting to speculation, exactly what ruling or
    rulings are being challenged or which causes of action are claimed to have been
    erroneously dismissed, we must decline to address this point. We gratuitously note
    that, while we agree with Appellant's general contention that Gibson does not bar all
    conceivable negligence actions against religious organizations,3 the trial court properly
    interpreted Gibson as barring all of the claims asserted by Appellant against the
    Diocese that stemmed from Father Tierney's alleged sexual abuse of Appellant and the
    Diocese supervision of Father Tierney and/or Appellant. See D.T., 
    2013 WL 5979189
    at *5; 
    Gibson, 952 S.W.2d at 245-50
    . Point denied.
    In his fifth point, Appellant contends that the trial court erred in dismissing his
    claim against the Diocese for negligent failure to supervise a child because the trial
    court misinterpreted Gibson as precluding such a claim.                   This court has previously
    rejected identical arguments to those advanced by Appellant in D.T. v. Catholic
    Diocese of Kansas City-St. Joseph, Case No. WD 76025, 
    2013 WL 5979189
    at *4
    (Mo. App. W.D. 2013). In that case, we concluded that claims that the Diocese was
    3
    Indeed, Gibson expressly notes that a religious organization could be vicariously liable for acts of its
    clergy related to the negligent operation of a motor vehicle or for negligent maintenance of its property
    resulting in a dangerous condition. 
    Gibson, 952 S.W.2d at 246
    .
    8
    negligent in its supervision of another child, who claimed to have been molested by
    Father Tierney in the home of Father Tierney's mother and in a hotel room, neither of
    which were owned or controlled by the diocese, were precluded by Gibson, which is
    binding on this Court. 
    Id. at *5.
    We further noted that the Eastern District, addressing
    the same basic arguments, interpreted Gibson to bar all negligence claims against a
    diocese resulting from the sexual abuse of a minor parishioner by a priest. 
    Id. (citing Doe
    v. Roman Catholic Archdiocese of St. Louis, 
    347 S.W.3d 588
    , 595 (Mo. App.
    E.D. 2011) & Doe v. Roman Catholic Archdiocese of St. Louis, 
    311 S.W.3d 818
    (Mo.
    App. E.D. 2010)). For the same reasons stated in D.T., Appellant's fifth point in the
    case at bar is denied.
    In his sixth point, Appellant argues that the trial court erred in dismissing his
    various negligence claims based upon Gibson because Gibson was incorrectly decided.
    He claims Gibson misinterpreted and misapplied the Free Exercise Clause and the
    Establishment Clause in holding that the First Amendment barred negligence-based
    claims against religious organizations for sexual abuse conducted by one of its clergy.
    This point must be summarily denied.
    "A claim that the Missouri Supreme Court has incorrectly decided a previous
    case or cases is not cognizable in the Missouri Court of Appeals." Independence-Nat.
    Educ. Ass'n v. Independence Sch. Dist., 
    162 S.W.3d 18
    , 21 (Mo. App. W.D. 2005).
    "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, 311 S.W.3d at 822
    (quoting Mo. Const. art. V, Section 2). "As such, we are
    constitutionally bound to follow the most recent controlling decision of the Missouri
    9
    Supreme Court, and inquiries questioning the correctness of such a decision are
    improper." 
    Id. (internal quotation
    omitted). "Until the Missouri Supreme Court or the
    United States Supreme Court declares differently, Gibson constitutes controlling law in
    Missouri, law which we are bound to apply." 
    Doe, 347 S.W.3d at 595
    . Point denied.
    The judgment is affirmed.
    ________________________________
    Joseph M. Ellis, Judge
    All concur.
    0
    10
    

Document Info

Docket Number: WD76155

Citation Numbers: 432 S.W.3d 213, 2014 WL 928996, 2014 Mo. App. LEXIS 249

Judges: Ellis, Harman, James, Joseph, Larry, Welsh

Filed Date: 3/11/2014

Precedential Status: Precedential

Modified Date: 11/14/2024