John Doe, 414 v. Father Shawn Ratigan ( 2015 )

In the
Missouri Court of Appeals
Western District
JOHN DOE 414, ET AL., )
)
Appellants, ) WD78298
)
v. ) OPINION FILED:
) November 10, 2015
FATHER SHAWN RATIGAN, ET AL., )
)
Respondents. )
Appeal from the Circuit Court of Clay County, Missouri
The Honorable Larry D. Harman, Judge
Before Division One: Victor C. Howard, Presiding Judge, Thomas H. Newton, Judge
and Cynthia L. Martin, Judge
Jane Doe 413 ("Doe 413"), John Doe 414 ("Father"), and Jane Doe 415
("Mother") (hereinafter "Doe Family") appeal from the trial court's grant of summary
judgment in favor of defendants Diocese of Kansas City-St. Joseph ("Diocese") and
Bishop Robert Finn ("Finn") on the Doe Family's claims for damages for acts alleged to
have been engaged in by defendant Father Shawn Ratigan ("Ratigan"). Finding no error,
we affirm.
Factual and Procedural Background
In this case involving review of the grant of summary judgment, we view the
record and all reasonable inferences therefrom in the light most favorable to the Doe
Family, the non-movants, subject to the requirements of Rule 74.04.1 ITT Commercial
Fin. Corp. v. Mid–America Marine Supply Corp., 854 S.W.2d 371, 376, 381-82 (Mo.
banc 1993).
Doe 413 was born in 2001. Her parents are Father and Mother. The Doe Family
joined the St. Patrick's Church parish in the summer of 2009. Ratigan became the pastor
of the St. Patrick's Church at about the same time.
On December 16, 2010, Ken Kes ("Kes"), a computer contractor who worked for
St. Patrick's Church, was asked to look at Ratigan's laptop because it was running slow.
Kes determined that the hard drive was full, and in the process of deleting files, saw
pictures of young girls stored on the hard drive with numbers assigned, indicating the
pictures had been taken by a camera. Kes reported his discovery to the office manager at
St. Patrick's Church. Kes then brought the laptop to the Church office to meet with
Deacon Michael Lewis ("Deacon Lewis"). Kes assisted Deacon Lewis in navigating to
one particular picture Kes had found of a young girl with her pants pulled down. Deacon
Lewis contacted Monsignor Robert Murphy ("Msgr. Murphy"), the Vicar for Clergy of
the Diocese at the time. On December 16, 2010, Deacon Lewis delivered the laptop to
Msgr. Murphy. Msgr. Murphy asked Julie Creech ("Creech"), the Diocese's Director of
Management Information Systems, to look at the laptop. On December 17, 2010, Creech
1
All references to Rules are to Missouri Court Rules Volume I--State 2015 unless otherwise noted.
2
copied photographs she found on the laptop to a flash drive. On the same day, Creech
and her supervisor prepared a memorandum to Msgr. Murphy regarding their findings
and attached copies of some of the images found on the laptop. On the same day, Msgr.
Murphy contacted the Diocese's outside legal counsel for an opinion about whether the
images found on Ratigan's laptop constituted child pornography. Msgr. Murphy advised
Finn that he had consulted with outside counsel about images found on Ratigan's laptop.
In December 2010, outside legal counsel advised Finn that in his legal opinion, the
images on Ratigan's laptop were not child pornography.2
On December 17, 2010, Ratigan failed to report to work at St. Patrick's Church.
Deacon Lewis contacted the police, who discovered Ratigan unconscious in his garage
with his motorcycle running. In December 2010 during Sunday Mass at St. Patrick's
Church, someone3 announced that Ratigan had had an accident while working on his
motorcycle, that those attending Mass should pray for his recovery, and that cards for
Ratigan could be placed in a basket at the back of the church. In January 2011, the
Diocese and Finn sent Ratigan to see a doctor for a psychiatric evaluation.4
In February 2011, Finn assigned Ratigan to a limited ministry as Chaplain for the
Sisters of St. Francis of Holy Eucharist in Independence, Missouri. Finn imposed written
2
The extent to which Finn relied on this legal advice, whether legal counsel nonetheless recommended
reporting the images to authorities, and the extent to which Finn personally viewed the images found on Ratigan's
laptop, are facts that are in controversy. Though controverted, these facts did not impede the grant of summary
judgment. "Only genuine disputes as to material facts preclude summary judgment." Goerlitz v. City of Maryville,
333 S.W.3d 450, 453 (Mo. banc 2011) (citing ITT Commercial Fin. Corp., 854 S.W.2d at 378). "A material fact in
the context of summary judgment is one from which the right to judgment flows." Id. (citing ITT Commercial Fin.
Corp., 854 S.W.2d at 378).
3
The summary record does not establish who made this announcement or the date in December when the
announcement was made. December 17, 2010, (the day Ratigan was found unconscious) was a Friday.
4
The sufficiency of the evaluation and whether additional services were recommended to Finn for Ratigan
are controverted. Though controverted, these facts did not impede the grant of summary judgment. See footnote 2.
3
restrictions on Ratigan with which Ratigan agreed to comply. The restrictions included
that Ratigan would avoid contact with children, would not use a computer, would use a
camera only in limited circumstances, and would not take any photos of children.
Neither Finn nor any other representative of the Diocese told Deacon Lewis about the
restrictions, though Deacon Lewis did learn about some of the restrictions from Ratigan's
brother, Brian Ratigan.
Between March 2011 and April 2011, the Doe Family had three interactions with
Ratigan. In March 2011, the Doe Family arranged to meet with Ratigan at a park where
the Doe Family was playing softball. Mother and Father saw Ratigan take a picture of
Doe 413 with his cell phone while Doe 413 was sitting in the "V" between two branches
of a tree. Later that same day, the Doe Family and Ratigan ate together at a pizza
restaurant. Ratigan sat on the opposite side of the table from Doe 413. Mother and
Father observed that Ratigan had his phone in his lap. On Easter Sunday in April 2011,
the Doe Family attended Easter Mass at Ratigan's invitation, and spoke briefly with him
before and after Mass. Ratigan did not take pictures of Doe 413 on this date.
In May 2011, Ratigan was arrested and charged with possession of child
pornography. None of the charges related to Doe 413. The arrest occurred within days
of the delivery to the police of a CD and a flash drive containing photographs that had
been copied by Creech from Ratigan's laptop. At about the same time, Ratigan's brother
gave the police CDs and other media he had found in Ratigan's residence around the time
Ratigan attempted suicide. Prior to Ratigan's arrest, Finn had no contact with the Doe
Family except meeting with them briefly after a service in 2010.
4
After Ratigan's arrest, Mother began to worry that Ratigan had taken pictures of
Doe 413. Mother and Father began to suspect that Doe 413's underwear was visible
when Ratigan took the picture of her sitting in the tree in the park. Mother and Father
began to suspect that Doe 413's legs could have been open exposing her underwear at the
pizza restaurant and that Ratigan could have been using his cell phone to take pictures of
Doe 413 under the table.
Mother and Father gave the police photos of Doe 413 and of the clothes she was
wearing in the park and at the restaurant. Detective Margaret McGuire ("Detective
McGuire"), the lead investigator on Ratigan's case, found no photographs of Doe 413 on
any computer, camera, phone, or device recovered in the investigation of Ratigan or in
emails subpoenaed from Ratigan's email provider. Detective McGuire told Mother and
Father that no photos of Doe 413 were found during the investigation.
On November 16, 2011, the Doe Family filed a lawsuit in the Clay County Circuit
Court naming Ratigan, the Diocese, and Finn as defendants. An amended petition was
filed in April 2012.5 The amended petition asserted 11 counts. Counts I and III were
asserted against Ratigan only and are irrelevant to this appeal. Counts II, IV, V, VI, VII,
VIII, IX, X, and XI were asserted against the Diocese and Finn, and in some cases against
Ratigan. Count II asserted a violation of section 537.046.6 Count IV asserted a violation
5
A file stamped copy of the amended petition is not included in the legal file. The only copy of the
amended petition in the legal file is the copy attached to the Doe Family's motion for leave to file a first amended
petition. A copy of the trial court's order granting leave to amend the petition is not included in the legal file. We
believe it safe to assume, however, that the first amended petition was filed or deemed filed, as the Diocese and Finn
filed an answer to the amended petition, and as their motion for summary judgment references the amended petition.
6
All references to Missouri statutes are to RSMo 2000 as supplemented except as otherwise noted. Section
537.046 creates a civil cause of action for childhood sexual abuse.
5
of section 537.047.7 Count V asserted a claim of intentional failure to supervise clergy.
Count VI asserted a claim of negligent failure to supervise children. Count VII asserted a
claim of fraud and conspiracy to commit fraud. Count VIII asserted a claim of fraudulent
misrepresentation. Count IX asserted a claim of conspiracy to commit fraud and
constructive fraud. Count X asserted a claim of fraud, on behalf of Mother and Father
only. Count XI asserted a claim of invasion of privacy.
The nine counts asserted against the Diocese and Finn were the subject of a
motion for summary judgment. Following full briefing, the trial court entered a judgment
on December 8, 2014, ("Judgment") granting summary judgment in favor of the Diocese
and Finn on each of the nine counts asserted against them.
The Doe Family filed an appeal from the Judgment on January 20, 2015.8 Further
facts will be addressed where pertinent to our discussion of the points raised on appeal.
Standard of Review
We review a trial court's grant of summary judgment de novo. Goerlitz v. City of
Maryville, 333 S.W.3d 450, 452 (Mo. banc 2011) (citing ITT Commercial Fin. Corp.,
854 S.W.2d at 376; Rule 74.04). "Summary judgment is only proper if the moving party
establishes that there is no genuine issue as to the material facts and that the movant is
7
Section 537.047 creates a civil cause of action for certain sexual and pornographic offenses involving a
minor.
8
When the Judgment was entered, the Doe Family's claims against Ratigan (who had been served, but who
never filed an answer) remained unresolved. Thus, the Judgment was not a final judgment, as it did not resolve all
issues as to all parties. Rule 74.01(a); Buemi v. Kerckhoff, 359 S.W.3d 16, 20 (Mo. banc 2011) (holding that a "final
judgment is defined as one that resolves all issues in a case, leaving nothing for future determination"). Ordinarily,
if there is no final judgment, we must dismiss an appeal. Ndegwa v. KSSO, LLC, 371 S.W.3d 798, 801 (Mo. banc
2012). However, while this appeal was pending, the trial court entered a default judgment in favor of the Doe
family and against Ratigan on May 5, 2015, pursuant to Rule 74.05(a) because Ratigan failed to plead or otherwise
defend the amended petition despite its due service upon him. All issues as to all parties were resolved at that time.
The default judgment was made a part of the record on appeal in a supplemental legal file. Though the Doe Family's
notice of appeal was prematurely filed, we deem it timely filed immediately after the Judgment became final for
purposes of appeal. Rule 81.05(b).
6
entitled to judgment as a matter of law." Id. (citing ITT Commercial Fin. Corp., 854
S.W.2d at 376). "Only genuine disputes as to material facts preclude summary
judgment." Id. at 453 (citing ITT Commercial Fin. Corp., 854 S.W.2d at 378). "A
material fact in the context of summary judgment is one from which the right to judgment
flows." Id. (citing ITT Commercial Fin. Corp., 854 S.W.2d at 378).
Where summary judgment has been granted in favor of a defending party, we must
determine whether the defending party established "a right to summary judgment by
demonstrating: (1) facts negating any one of the elements of the non-movant's claim; (2)
'that the non-movant, after an adequate period for discovery, has not been able and will
not be able to produce sufficient evidence to allow the trier of fact to find the existence of
any one' of the elements of the non-movant's claim; or (3) 'that there is no genuine
dispute as to the existence of facts necessary to support movant's properly pleaded
affirmative defense.'" Id. (citing ITT Commercial Fin. Corp., 854 S.W.2d at 381).
We will affirm the grant of summary judgment on any basis supported by the
record, whether or not relied upon by the trial court. ITT Commercial Fin. Corp., 854
S.W.2d at 376. However, a party against whom summary judgment has been entered
cannot challenge the grant of summary judgment with facts, arguments, or theories that
were not presented to the trial court. Walden v. Smith, 427 S.W.3d 269, 284 (Mo. App.
W.D. 2014); Sheedy v. Missouri Highways & Transp. Comm'n, 180 S.W.3d 66, 70-71
(Mo. App. S.D. 2005) ("[A]n appellate court will not convict a trial court of error based
on an issue which was not put before it to decide.") (citing Lincoln Credit Co. v. Peach,
636 S.W.2d 31, 36 (Mo. banc 1982)).
7
Summary of Issues on Appeal
The Doe Family raises six points on appeal, each claiming error in granting
summary judgment. In the first point, the Doe Family claims that all of their claims in
the amended petition were established because they were entitled to an affirmative
inference that spoliated evidence contained obscene images of Doe 413. In the second
point, the Doe Family claims that there was sufficient evidence to show that they were
defrauded "by the Diocese because the Diocese fraudulently concealed [Ratigan's]
ongoing sexual exploitation of children, failed to communicate its knowledge of his
perfidy to [the Doe Family] when it had a duty to do [so] and misrepresented facts upon
which [the Doe Family] relied in allowing [Ratigan] access to their children." In the third
point, the Doe Family claims there was sufficient evidence "to find that Ratigan violated"
section 537.047. In the fourth point, the Doe Family claims that in rejecting their claim
for intentional failure to supervise clergy, the trial court failed to give effect to Gibson v.
Brewer9 because the Diocese knew Ratigan was taking pornographic pictures of little
girls and used chattels of the Diocese to protect Ratigan, who was acting as an agent of
the Diocese. In the fifth point, the Doe Family claims that the trial court "improperly
construed Gibson v. Brewer" because negligence claims may be brought against a
Diocese so long as the negligence analysis does not offend the First Amendment. In the
sixth point, the Doe Family claims that the Diocese is liable for Ratigan's violation of
section 537.046 and for Ratigan's invasion of Doe 413's privacy under aiding and
abetting and ratification theories.
9
952 S.W.2d 239 (Mo. banc 1997).
8
We address the points individually.
Analysis
Point One: Spoliation of Evidence
The Doe Family contends that all of their claims are established because they are
entitled to an affirmative inference that spoliated evidence contained obscene images of
Doe 413. There are several difficulties with this contention.
First, the Doe Family's point relied on does not identify the alleged spoliated
evidence and does not explain how the urged affirmative inference would operate to
negate the entry of summary judgment as a matter of law as to any (let alone all) of their
claims, rendering the first point on appeal nothing more than an abstract statement which
preserves nothing for our review. Rule 84.04(d)(4) expressly provides that "[a]bstract
statements of law, standing alone, do not comply with" the Rule's requirement with
respect to the required content of a point relied on. See Landwehr v. Landwehr, 129
S.W.3d 395, 398 (Mo. App. W.D. 2004).
Second, the Doe Family never argued to the trial court that the spoliation of
evidence entitled them to an affirmative inference that would prevent the entry of
summary judgment as a matter of law as to any or all of their claims. The only time
"spoliation" was raised by the Doe Family was in their suggestions in opposition to the
motion for summary judgment that addressed Count IV, which alleged a violation of
section 537.047. [L.F. 850-51] There, under a heading that reads "Both Ratigan and the
Diocese are responsible for Spoliating Evidence," the only reference to "spoliation" is the
assertion that "Ratigan destroyed the SD card [in his cell phone] at the jail [when he was
9
arrested], [and] any traces of photographs of [Doe 413] were ruined." [L.F. 851] The
Doe Family did not allege that either the Diocese or Finn were involved in Ratigan's
alleged destruction of the SD card; did not cite to any authority addressing the spoliation
doctrine; did not allege that they were entitled to an affirmative inference that Ratigan's
SD card contained obscene images of Doe 413; and did not argue that an affirmative
inference would operate to defeat the grant of summary judgment as to any or all of their
claims. The Doe Family cannot challenge the trial court's grant of summary judgment
with arguments or theories that were not presented to the trial court. Walden, 427 S.W.3d
at 284; Sheedy, 180 S.W.3d at 70-71 ("[A]n appellate court will not convict a trial court
of error based on an issue which was not put before it to decide.") (citing Lincoln Credit
Co., 636 S.W.2d at 36).
Third, the argument portion of the Doe Family's Brief discusses Finn's return of
Ratigan's laptop computer to Ratigan's brother Brian in March 2011, and Brian Ratigan's
subsequent destruction of the laptop. [Appellants' Brief, p. 32, 33] In their summary
judgment pleadings, the Doe Family alleged as an additional uncontroverted fact that the
Diocese and Finn encouraged Brian Ratigan to destroy Ratigan's laptop, which the
Diocese and Finn controverted. The controverted nature of this fact is immaterial,
however, to the Doe Family's claimed entitlement to an affirmative inference. There is
no connection between the destroyed laptop and Ratigan's alleged use of his cell phone to
take photographs of Doe 413 in March 2011.10 The circumstances of the laptop's
10
The Doe Family does not base its claims against the Diocese and Finn on an assertion that photographs of
Doe 413 appeared on Ratigan's laptop. Ratigan last possessed the laptop on December 16, 2010. Creech copied all
photos she found on the laptop onto a flash drive on December 17, 2010. This flash drive was delivered to the
police in May 2011. Detective McGuire reviewed this flash drive and other materials and devices delivered or
10
destruction are immaterial to establish, by affirmative inference or otherwise, that
Ratigan took obscene photographs of Doe 413 with his cell phone. "Only genuine
disputes as to material facts preclude summary judgment." Goerlitz, 333 S.W.3d at 453
(citing ITT Commercial Fin. Corp., 854 S.W.2d at 378). "A material fact in the context
of summary judgment is one from which the right to judgment flows." Id. (citing ITT
Commercial Fin. Corp., 854 S.W.2d at 378).
Point One is denied.
Point Two: Fraud
The Doe Family's second point on appeal raises three distinct claims of error: (i)
that sufficient evidence establishes the Diocese fraudulently concealed Ratigan's ongoing
sexual exploitation of children; (ii) that sufficient evidence establishes that the Diocese
failed to communicate its knowledge of Ratigan's perfidy to the Doe Family though it had
a duty to do so; and (iii) that sufficient evidence establishes that the Diocese
misrepresented facts upon which the Doe Family relied to allow Ratigan access to their
children. This point on appeal is multifarious, as it raises multiple, discrete complaints
that are required to be asserted in separate points relied on. Rule 84.04(d)(1)(A).
Multifarious points on appeal preserve nothing for appellate review. Host v. BNSF Ry.
Co., 460 S.W.3d 87, 96 n. 4 (Mo. App. W.D. 2015).
In addition, the point on appeal fails to identify the Counts in the amended petition
implicated by the multifarious assertions of error, leaving us to speculate about the effect
seized during the investigation of Ratigan. Detective McGuire reported to the Doe Family that no pictures of Doe
413 were found. The only pictures of Doe 413 relied on by the Doe Family to state claims in the amended petition
are the picture Mother and Father saw Ratigan take in the park in March 2011 while Doe 413 was in a tree and
pictures Mother and Father speculate that Ratigan may have taken under the table in the pizza restaurant in March
2011.
11
of the argued errors on the trial court's grant of summary judgment. Rule 84.04(d)
requires a point relied on to "explain in summary fashion why, in the context of the case,
. . . legal reasons [identified in the point] support [a] claim of reversible error." In the
absence of this explanation, the Doe Family's point urges nothing more than abstract
statements of law, which, "standing alone, do not comply with [Rule 84.04]." Rule
84.04(d)(4).
Moreover, the point's reference to the existence of "sufficient evidence" to prove
fraud claims is irrelevant to appellate review of a grant of summary judgment where the
defending party need only demonstrate a right to judgment as a matter of law because one
essential element of a non-movant's claim cannot be established based on the
uncontroverted facts. ITT Commercial Fin. Corp., 854 S.W.2d at 381.
These deficiencies collectively implicate the requirements of Rule 84.04,
compliance with which is mandatory "to ensure that appellate courts do not become
advocates by speculating on facts and on arguments that have not been made." Treaster
v. Betts, 297 S.W.3d 94, 95 (Mo. App. W.D. 2009) (internal citations omitted). We are
nonetheless reluctant to dismiss an appeal for briefing discrepancies unless the
deficiencies impede our ability to dispose of claims on their merits. Lanham v. Div. of
Emp't Sec., 340 S.W.3d 324, 327 (Mo. App. W.D. 2011).
Here, we exercise our discretion to review the Doe Family's second point on
appeal. We read the point's reference to "sufficient evidence" as a contention that each of
the essential elements of the referenced fraud claims remains subject to the resolution of
genuine issues of material fact in dispute. ITT Commercial Fin. Corp., 854 S.W.2d at
12
382 (holding that to defeat motion for summary judgment filed by a defending party,
non-movant need not establish right to judgment as a matter of law, but "need only show
that there is a genuine dispute as to the facts underlying the movant's right to judgment").
We read the point to refer to only three fraud theories: (i) fraudulent concealment; (ii)
fraudulent nondisclosure; and (iii) fraudulent misrepresentation. These fraud theories are
expressed through the allegations set forth in Counts VII, VIII, and X of the Doe Family's
amended petition. We therefore read the second point on appeal to claim error in the
grant of summary judgment on Counts VII, VIII, and X of the amended petition because
genuine issues of material fact remain in dispute with respect to each of the essential
elements of fraudulent concealment, fraudulent nondisclosure, and fraudulent
misrepresentation.11
In the argument portion of the Brief, the Doe Family combines discussion of
fraudulent concealment and fraudulent nondisclosure under the heading "Fraudulent
Concealment of a Tort/Fraudulent Non-Disclosure." [Appellants' Brief, p. 34] The Doe
Family relies exclusively on the case of Batek v. Curators of Univ. of Missouri, 920
S.W.2d 895 (Mo. banc 1996) for the proposition that Batek recognizes a distinct cause of
action for "fraudulent concealment of a tort." We disagree. Batek does not recognize a
distinct cause of action for fraudulent concealment of a tort but instead addresses the
allegations necessary to claim that a defendant's fraudulent concealment of his own
11
In the argument portion of the Brief, the Doe Family also argues error because the evidence was sufficient
to support a claim for conspiracy to commit fraud. [Appellants' Brief, pp. 38-40] A "conspiracy" claim was alleged
as a part of Count VII and independently in Count IX of the amended petition. The argument portion of the Brief
also claims error because the evidence was sufficient to support a claim of constructive fraud. [Appellants' Brief,
pp. 40-44]. A constructive fraud claim was alleged Count IX of the amended petition. These claims of error are not
fairly encompassed in the second point relied on and are not preserved for appellate review. Nichols v. Div. of
Employment Sec., 399 S.W.3d 901, 904 (Mo. App. W.D. 2013) ("We do not review arguments and issues raised in
the argument under a point that are not fairly encompassed by that point.") (citation omitted).
13
negligent conduct tolls the statute of limitations for negligence. Id. at 900. The statute of
limitations is not at issue in this case, rendering Batek irrelevant. Even if Batek could be
read to establish an independent cause of action for fraudulent concealment of a tort, the
Doe Family's amended petition does not expressly plead this cause of action. It is
axiomatic that the trial court's Judgment did not grant summary judgment on a cause of
action that was not pled.
The balance of the argument addressing fraudulent concealment/fraudulent
nondisclosure recites alleged facts and evidence, followed by the conclusory statement
that "[a]ll possible elements for fraudulent concealment of a tort have been satisfied."
[Appellants' Brief, pp. 34-37]. The Doe Family does not identify the essential elements
of a claim of "fraudulent concealment" other than by erroneous reference to Batek. The
Doe Family does not explain how the recited facts and evidence operate to establish that
each of the essential elements of a claim of fraudulent concealment/nondisclosure12
remain controverted. The Doe Family has not established error with respect to the grant
of summary judgment on their claims of fraudulent concealment and fraudulent
nondisclosure.
The Brief next addresses the claim of fraudulent misrepresentation. The Doe
Family correctly notes that the elements of a fraudulent misrepresentation claim are: "(1)
12
In Missouri, fraudulent nondisclosure is not a separate tort. Hess v. Chase Manhattan Bank USA, N.A.,
220 S.W.3d 758, 765 (Mo. banc 2007). Rather, "[i]n nondisclosure cases, a party's silence amounts to a
representation where the law imposes a duty to speak." Id. In other words, failing to speak when the law imposes a
duty to do so replaces the essential element of a "false, material representation" in a fraudulent misrepresentation
case. Id. In discussing their fraudulent concealment/nondisclosure claims, the Doe Family's Brief does not address
the recognized elements of a fraudulent misrepresentation claim equally applicable to a fraudulent nondisclosure
claim and does not discuss the essential element peculiar to a fraudulent nondisclosure claim--the presence of a duty
imposed by law to speak.
14
a false, material representation,13 (2) the speaker's knowledge of its falsity or his
ignorance of the truth, (3) the speaker's intent that the hearer act upon the representation
in a manner reasonably contemplated, (4) the hearer's ignorance of the falsity of the
representation, (5) the hearer's reliance on its truth, (6) the hearer's right to rely thereon,
and (7) the hearer's consequent and proximately caused injury." Urologic Surgeons, Inc.
v. Bullock, 117 S.W.3d 722, 725-26 (Mo. App. E.D. 2003). The Doe Family then asserts
that "[e]ach element is pleaded and supported by facts. The representation was
continuous--as long as the Diocese covered up its priest's conduct and held him out as a
priest, the misrepresentation continued." [Appellants' Brief, p. 37] The argument
continues with the conclusory assertion that the Diocese and Finn prevented "children
and parents from knowing that [Ratigan] was exploiting children."
The only affirmative representation identified in the Brief is the representation that
Ratigan was a priest. Putting aside for the moment that the Doe Family has not identified
who made this representation, it is uncontroverted that Ratigan was a priest. In other
words, the representation was not false, defeating the essential element of a false,
material representation.
The balance of the argument addressing the fraudulent misrepresentation claim
alleges a "cover[] up [of Ratigan's] conduct." A "cover up" is not a misrepresentation,
but is instead a nondisclosure. "In nondisclosure cases, a party's silence amounts to a
representation where the law imposes a duty to speak." Hess v. Chase Manhattan Bank
13
Some Missouri cases break this element of a false misrepresentation claim into three separate elements:
(1) a representation, (2) its falsity, and (3) its materiality. See, e.g., Trimble v. Pracna, 51 S.W.3d 481, 498 (Mo.
App. S.D. 2001); Cabinet Distributors, Inc. v. Redmond, 965 S.W.2d 309, 312 (Mo. App. E.D. 1998).
15
USA, N.A., 220 S.W.3d 758, 765 (Mo. banc 2007). In other words, failing to speak when
the law imposes a duty to do so replaces the essential element of a "false, material
representation" in a fraudulent misrepresentation case. Id. The summary judgment
record demonstrates that what the Diocese and Finn knew about Ratigan's conduct, when
they knew it, and whether the Doe Family reasonably relied on nondisclosure of
Ratigan's conduct, are facts in controversy, rendering some of the essential elements of a
claim of fraudulent representation the subject of material controversy.
However, a defending party need only establish that at least one of the essential
elements of a claim cannot be established based on the uncontroverted facts to be entitled
to summary judgment. ITT Commercial Fin. Corp., 854 S.W.2d at 381. Two essential
elements of a claim of fraudulent misrepresentation based on a nondisclosure are not
addressed by the Doe Family. The Doe Family's Brief does not address the essential
element of whether the Diocese and Finn were silent under circumstances where the law
imposed a duty to speak. Hess, 220 S.W.3d at 765. And the Doe Family's Brief does not
address the essential element of consequent and proximately caused injury, Urologic
Surgeons, Inc., 117 S.W.3d at 726. Where, as here, summary judgment has been granted
based on a defending party's claim that at least one essential element of a claim cannot be
established, a non-movant must demonstrate that each of the essential elements of the
claim remain subject to genuine issues of material fact in dispute. ITT Commercial Fin.
Corp., 854 S.W.2d at 381. The Doe Family has not met this burden.
It is plain on this record that the Doe Family cannot establish the essential element
of consequent and proximately caused injury. The Doe Family's fraudulent
16
misrepresentation (nondisclosure) claim asserts that but for Finn and the Diocese's failure
to tell them about what had been found on Ratigan's laptop, Ratigan would not have been
around Doe 413 in March 2011 and would not have had the opportunity to take obscene
pictures of Doe 413. The injury alleged is that obscene photographs were taken of Doe
413. It is uncontroverted, however, that no obscene pictures of Doe 413 were found
during the investigation of devices and emails to which Ratigan had access.14 It is
uncontroverted that the picture Mother and Father saw Ratigan take of Doe 413 in the
park was taken while Mother and Father were nearby and under circumstances that did
not arouse their concern or suspicion. Mother and Father now speculate that Doe 413's
underwear may have been showing when she in the tree, although neither Mother nor
Father observed that to be the case. It is uncontroverted that Mother and Father did not
see Ratigan taking any pictures in the pizza restaurant, though they now speculate that he
could have been, and that if he was, that it is possible Doe 413 was sitting in such a way
that her underwear was exposed, though neither Mother nor Father observed that to be
the case. The presence of injury--that is, that Ratigan took obscene photographs of Doe
413--is the subject of conjecture and speculation.
We understand the concern Mother and Father felt after learning of Ratigan's
arrest and why Mother and Father took their concerns to the police. However, Mother
and Father were advised by the police that based on their investigation, Doe 413 was not
victimized by Ratigan. The fact that Doe 413 could have been victimized is speculative
14
We recognize that the Doe Family's first point relied on asks for an affirmative inference pursuant to the
spoliation doctrine that Ratigan took obscene pictures of Doe 413. For reasons we explained, supra, the prospect of
supplying an essential element of one or more of the Doe Family's claims via an affirmative inference drawn from
Ratigan's alleged spoliation of the SD card from his cell phone was never raised by the Doe Family in defense of the
Diocese and Finn's motion for summary judgment and cannot be raised for the first time on appeal.
17
and insufficient to establish a genuine issue in dispute on the essential element of injury.
"Mere speculation does not create a genuine issue of material fact." Rustco Products Co.
v. Food Corn, Inc., 925 S.W.2d 917, 923 (Mo. App. W.D. 1996). An issue of material
fact is genuine "only if it is real and substantial; it may not consist 'of conjecture, theory
and possibilities.'" Hanson v. Union Elec. Co., 963 S.W.2d 2, 4 (Mo. App. E.D. 1998)
(quoting ITT Commercial Fin. Corp., 854 S.W.2d at 378).
We are required to affirm the grant of summary judgment on any basis supported
by the record. ITT Commercial Fin. Corp., 854 S.W.2d at 376. Because the trial court
could have granted summary judgment on the Doe Family's fraudulent misrepresentation
claim because there was no genuine issue of material fact in dispute regarding their
inability to establish the essential element of injury, we find no error. As a result, we
need not address whether the Doe Family can establish the additional essential element of
silence under circumstances where the law imposed a duty on the Diocese and Finn to
speak.
Point Two is denied.
Point Three: Ratigan's Violation of Section 537.047
In their third point on appeal, the Doe Family argues that it was error to grant
summary judgment because there is "sufficient evidence . . . to find that Ratigan violated"
section 537.047.15
Once again, the Doe Family's point fails to identify the Counts in the amended
petition as to which they contend summary judgment was improvidently granted given
15
As noted, section 537.047 permits a civil action for certain sexual and pornographic offenses involving a
minor.
18
this claim of error. And the point does not explain how Ratigan's violation of section
537.047 renders all of the essential elements of any claim asserted in the amended
petition controverted. In short, the Doe Family has not explained, in the context of this
case, how Ratigan's alleged violation of section 537.047 requires a finding of reversible
error. Instead, the Doe Family's point asserts an abstract statement of law, which,
"standing alone, do[es] not comply with [Rule 84.04]." Rule 84.04(d)(4).
We nonetheless elect to review this deficient point ex gratia. Count IV of the
amended petition alleged that the Diocese and Finn violated section 537.047.16 We read
point three to claim error in the entry of summary judgment on Count IV of the amended
petition because the evidence establishes that Ratigan violated section 537.047.
The amended petition alleges that the Diocese and Finn violated section 537.047
in four different ways: (i) Ratigan violated section 537.047, and was acting within the
scope and course of his employment, rendering the Diocese and Finn liable under a
respondeat superior theory; (ii) Ratigan violated section 537.047, and the Diocese and
Finn aided or abetted Ratigan; (iii) Ratigan violated section 537.047, and the Diocese and
Finn ratified Ratigan's acts; and (iv) the Diocese and Finn directly violated section
537.047 once they took possession of Ratigan's laptop computer.
16
Count III of the amended petition alleged that Ratigan violated section 537.047. The default judgment
taken by the Doe Family against Ratigan on this claim does not bind the Diocese and Finn. Hayes v. United Fire &
Cas. Co., 3 S.W.3d 853, 856 (Mo. App. E.D. 1999) (holding that a default judgment does not constitute an
adjudication on the merits as to support later preclusive effect of the judgment on another party).
19
The point relied on claims no error with respect to the assertion in the amended
petition that the Diocese and Finn directly violated section 537.047 by possessing
Ratigan's laptop. That claim is abandoned.17
The point relied on addresses only Ratigan's violation of section 537.047, an
essential element, of course, for each of the three theories of vicarious liability alleged
against the Diocese and Finn in the amended petition. However, the point does not claim
error with respect to any other essential element of the three vicarious liability theories.
The motion for summary judgment argued that Ratigan's alleged violation of
section 537.047 did not support tort vicarious liability as a matter of law; that no
authority permitted extending the reach of section 537.047 to impose vicarious liability
on nonperpetrators as aiders and abettors or on the basis of ratification; that the
uncontroverted facts failed to establish that the Diocese and Finn ratified Ratigan's
alleged efforts to take pictures of Doe 413; and that the uncontroverted facts failed to
establish that Ratigan acted in the course and scope of his employment by allegedly
taking obscene pictures of Doe 413. The trial court could have entered summary
judgment in favor of the Diocese and Finn because the uncontroverted facts and the law
precluded finding the Diocese and Finn liable for Ratigan's violation of section 537.047
on the theory of respondeat superior, aiding and abetting, or ratification. It is the Doe
Family's "'burden on appeal to demonstrate that the trial court's judgment was incorrect
on any basis supported by the record and the applicable law . . . . [T]he [Doe Family's]
17
The argument portion of the Brief does address evidence relevant to a claim that the Diocese and Finn
directly violated section 537.047 by possessing Ratigan's laptop from and after December 16, 2010. However, "[w]e
do not review arguments and issues raised in the argument under a point that are not fairly encompassed by that
point." Nichols, 399 S.W.3d at 904 (citation omitted).
20
failure to properly challenge a finding and ruling of the trial court that would support its
judgment . . . . [is] fatal to [their] appeal.'" STRCUE, Inc. v. Potts, 386 S.W.3d 214, 219
(Mo. App. W.D. 2012).18
Point Three is denied.
Point Four: Intentional Failure to Supervise Clergy
In their fourth point on appeal, the Doe Family argues that in rejecting their claim
for intentional failure to supervise clergy (Count V of the amended petition), the trial
court failed to give effect to Gibson v. Brewer because the Diocese knew Ratigan was
taking pornographic pictures of little girls and used chattels of the Diocese to protect
Ratigan, who was acting as an agent of the Diocese.
In Gibson v. Brewer, 952 S.W.2d 239 (Mo. banc 1997) the Supreme Court
announced the elements of a claim for intentional failure to supervise clergy.
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.
Id. at 248. The "other" requirements of the Restatement (Second) of Torts, section 317
("Section 317") are as follows:
A master is under a duty to exercise reasonable care so to control his
servant while acting outside the scope of his employment as to prevent him
from intentionally harming others or from so conducting himself as to
create an unreasonable risk of bodily harm to them if
18
The argument portion of the Doe Family's Brief raised an additional claim of error by arguing that the
evidence established that the Diocese and Finn aided and abetted or ratified Ratigan's violation of section 537.047.
However, as we have repeatedly explained, "[w]e do not review arguments and issues raised in the argument under a
point that are not fairly encompassed by that point." Nichols, 399 S.W.3d at 904 (citation omitted).
21
(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 or has reason to know that he has the ability to control his
servant, and
(ii) knows or should know of the necessity and opportunity for exercising
control.
Id. at 247. The inability to establish any one of the five essential elements identified in
Gibson is fatal to a claim for intentional failure to supervise clergy. Doe v. Roman
Catholic Archdiocese of St. Louis, 347 S.W.3d 588, 592 (Mo. App. E.D. 2011).
The Doe Family's point on appeal implicates the fifth essential element--the "other
requirements of Section 317--in two ways, as the point claims the Diocese knew that
Ratigan was taking pornographic pictures of children and that the Diocese used its own
chattels to protect Ratigan from discovery.
Consistent with the Doe Family's point on appeal, the motion for summary
judgment focused exclusively on whether the Doe Family could establish the "other"
requirements of Section 317, and, in particular, the knowledge requirements and the
"master's premises or chattels" requirement. Because the uncontroverted facts
demonstrate that the Doe Family could not establish the "master's premises or chattels"
requirement of Section 317, we need not address the knowledge requirements.
With regard to the "master's premises" prong, the motion for summary judgment
alleged as uncontroverted that Ratigan and the Doe Family were together in a public park
22
and at a public restaurant in March 2011, and that their gathering was personal in nature
and not Diocese organized or sponsored. The Doe Family did not controvert these facts.
The motion for summary judgment thus argued that the park and the restaurant were not
premises in the possession of the Diocese or Finn, or premises where Ratigan could only
enter as a servant of the Diocese. The Doe Family's suggestions in opposition to the
motion for summary judgment conceded this argument. Consistent with this fact, the
Doe Family does not claim on appeal that Ratigan's use of the Diocese's premises is a
matter in controversy.
With regard to the alternative "master's chattels" prong, the motion for summary
judgment asserted that the cell phone used by Ratigan to allegedly take obscene pictures
of Doe 413 was Ratigan's personal cell phone. The Doe Family did not controvert this
fact.19 The motion for summary judgment argued that Ratigan thus did not use a chattel
belonging to the Diocese to allegedly take obscene photographs of Doe 413. The Doe
Family did not disagree with this argument, but alternatively responded that Ratigan
"used his status as a priest" to have access to Doe 413, and that this, along with Ratigan's
"collar," were both "chattels of the Diocese" used by Ratigan to place him in a position to
allegedly take obscene photographs of Doe 413.
On appeal, the Doe Family's point relied on does not contend that Ratigan's collar
and status as a priest constituted chattels of the Dioceses. Instead, the point claims that
the Diocese (not Ratigan) used its own chattels "to protect [Ratigan] from discovery."
19
The Doe Family controverted whether the laptop taken from Ratigan on December 16, 2010, was owned
or controlled or purchased by the Diocese, but simply did not respond to the statement of uncontroverted facts
reference to Ratigan's cell phone or to other computers Ratigan possessed or had access to, thus admitting that fact.
Rule 74.04(c)(2).
23
This theory was not raised before the trial court in defense of the motion for summary
judgment and is not preserved for our review. Walden, 427 S.W.3d at 284; Sheedy, 180
S.W.3d at 70-71. In any event, the newly raised contention is plainly without merit. The
Diocese's use of its own chattels cannot, as a matter of law, satisfy Section 317's
requirement that a servant use the master's chattels to enable the servant's intentional
misconduct.
The point on appeal claims no other error relating to the "master's chattels" prong
of Section 317. However, the argument portion of the Brief repeats the argument made
by the Doe Family in its summary judgment pleadings that Ratigan's collar and status as a
priest constitute chattels of the Diocese. We address the argument, though it is not
preserved by inclusion in the point, because of its importance and novelty.20
The Doe Family cites two cases in support of the proposition that Ratigan's collar
and status as a priest are chattels of the Diocese. Neither case supports this proposition,
as both addressed the "master's premises" prong of Section 317, not the alternative
"master's chattels" prong. In Hutchison v. Liddy, 742 A.2d 1052, 1062 (Penn. 1999), the
court held that a priest's status as a priest satisfied the "master's premises" requirement of
Section 317 where evidence suggested that the priest was "privileged to enter [a] motel
room" with a minor "only as a servant of the Diocese." Hutchison did not address
Section 317's alternative "master's chattel" prong. In Weaver v. African Methodist
Episcopal Church, Inc. 54 S.W.3d 575 (Mo. App. W.D. 2001), we affirmed a jury verdict
in favor of a sexually harassed reverend, rejecting, inter alia, the defendant church's
20
Nichols, 399 S.W.3d at 904 ("We do not review arguments and issues raised in the argument under a
point that are not fairly encompassed by that point.") (citation omitted).
24
claim that it did not own the church where the harassing conduct occurred. Id. at 582.
We noted that the "master's premises" prong in Section 317 permits liability to extend to
the master for a servant acts on premises owned or possessed by the master, and on
premises neither owned nor possessed by the master if the servant's "employment
relationship has placed the servant in a position to obtain access to some premises that are
not controlled by the master." Id. However, we counseled that the "master's premises"
prong must be read mindful that the limitations in Section 317 "serve to restrict the
master's liability for a servant's purely personal conduct which has no relationship to the
servant's employment and the master's ability to control the servant's conduct or prevent
harm." Id. at 582-83. Weaver did not address the "master's chattels" prong of Section
317.
Even if we gratuitously construe the Doe Family's reliance on Hutchison and
Weaver as an unasserted claim of error regarding proof of Section 317's "master's
premises" prong, the Doe Family would not prevail. Missouri courts have twice rejected
a claim that a priest's status as a priest satisfies the "master's premises" requirement of
Section 317. In D.T. v. Catholic Diocese of Kansas City--St. Joseph, 419 S.W.3d 143,
151 (Mo. App. W.D. 2013), D.T. argued that a priest's mother's house and a hotel room
"should be considered Diocese property for purposes of Gibson analysis because D.T.'s
presence at these location occurred only because D.T. and his family trusted [the priest]
as a priest." We held that "neither [the priest's] mother's house nor the hotel may be
considered property possessed by the Diocese or property upon which [the priest] was
privileged to enter only because of his status as a priest with the Diocese." Id. A similar
25
result was reached in John Doe B.P. v. Catholic Diocese of Kansas City--St. Joseph, 432
S.W.3d 213 (Mo. App. W.D. 2014). In that case, we held that a minor's claim that he
went to a priest's mother's house because of the priest's status as a priest did not establish
that the Diocese had control of the property where the abuse occurred or that the priest
was privileged to enter the property only because of his status as a priest. Id. at 217.
In short, the "master's premises or chattels" requirement of Section 317 is not
established based solely on a servant's status as such. Because the trial court could have
found that the Doe Family was unable to establish the "master's premises or chattels"
requirement of Section 317, it did not error in granting summary judgment in favor of the
Diocese and Finn on the Doe Family's claim for intentional failure to supervise clergy.
The Doe Family's point on appeal raises the additional contention that the trial
court failed to give effect to Gibson. The Doe Family argues that the elements of the tort
of intentional failure to supervise clergy announced in Gibson are not exclusive. An
identical claim was thoroughly discussed and rejected by this court in D.T., 419 S.W.3d
at 155-56.
Point Four is denied.
Point Five: Negligence Claims
In their fifth point, the Doe Family claims that the trial court "improperly
construed Gibson v. Brewer" because negligence claims may be brought against a
Diocese so long as the negligence analysis does not offend the First Amendment.
Once again, the Doe Family fails to identify the Counts in the amended petition as
to which they contend summary judgment was improvidently granted given this claim of
26
error, rendering their point an abstract statement of law which, "standing alone, do[es]
not comply with [Rule 84.04]." Rule 84.04(d)(4). We gratuitously review this point on
appeal, reading it to apply only to Count VI of the amended petition which asserts a claim
for negligent failure to supervise children.
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." 952 S.W.2d at 246-47. In Doe v. Roman Catholic Diocese of St. Louis,
311 S.W.3d 818 (Mo. App. E.D. 2010), the Eastern District relied on Gibson to affirm a
trial court's dismissal of negligence claims against a Diocese, including a claim of
negligent failure to supervise children. Id. at 820, 824. In D.T., this court also relied on
Gibson to affirm dismissal of negligence claims against a Diocese, including a claim of
negligent failure to supervise children. Id. at 148-50. We are bound by these holdings
due to the doctrine of stare decisis. See Templemire v. W & M Welding, Inc., 433 S.W.3d
371, 379 (Mo. banc 2014).
The argument portion of the Doe Family's Brief advances a contention altogether
different than that asserted in their point relied on. The Doe Family argues that
negligence which flows from "how a prudent mandatory-reporter of sexual abuse would
act under the obligations of [Section] 210.115"21 does not offend the First Amendment.
[Appellants' Brief, p. 59] In effect, the Doe Family argues that a violation of section
21
Section 210.115 addresses the mandatory obligation to report suspected neglect or abuse of a child.
27
210.115 supports a private cause of action in negligence that is not implicated by the
holding in Gibson. The Doe Family's argument was not raised with the trial court,
preserving nothing for our review. Walden, 427 S.W.3d at 284; Sheedy, 180 S.W.3d at
70-71 ("[A]n appellate court will not convict a trial court of error based on an issue which
was not put before it to decide.") (citing Lincoln Credit Co., 636 S.W.2d at 36). The Doe
Family's argument exceeds the scope of its point relied on, preserving nothing for our
review. Nichols, 399 S.W.3d at 904. The Doe Family cites no authority for this newly
asserted proposition, preserving nothing for our review. Goudeaux v. Board of Police
Com'rs of Kansas City, 409 S.W.3d 508, 516 (Mo. App. W.D. 2013). Regardless, this
court has already held that a violation of the criminal mandatory reporting requirements
set forth in section 210.115 does not support a private civil cause of action in negligence.
Bradley v. Ray, 904 S.W.2d 302, 314 (Mo. App. W.D. 1995).
Point Five is denied.
Point Six: Invasion of Privacy and Violation of Section 537.046
In their sixth point, the Doe Family claims that the Diocese is liable for Ratigan's
violation of section 537.046 and for Ratigan's invasion of Doe 413's privacy under aiding
and abetting and ratification theories.
Once again, the Doe Family's point relied on fails to identify the Counts in the
amended petition as to which they contend summary judgment was improvidently
granted given their claim of error. The Doe Family has not explained, in the context of
this case, how their point relied on supports a claim of reversible error. Instead, the Doe
28
Family's point asserts an abstract statement of law, which, "standing alone, do[es] not
comply with [Rule 84.04]." Rule 84.04(d)(4).
We nonetheless elect to review this deficient point ex gratia. Count II of the
amended petition alleged that the Diocese and Finn violated section 537.046.22 Count XI
of the amended petition alleged a claim of invasion of privacy against the Diocese, Finn,
and Ratigan. We therefore read point six on appeal to claim error in the entry of
summary judgment on Counts II and XI of the amended petition because the argument
section of the point references evidence that purportedly establishes the Diocese and Finn
aided and abetted, or ratified, Ratigan's alleged violation of section 537.046 and his
alleged invasion of Doe 413's privacy.
This reading of the point demonstrates its multifarious nature. Though
multifarious points on appeal preserve nothing for appellate review, Host, 460 S.W.3d at
96 n. 4, we elect ex gratia to address the distinct claims raised in the point.
Section 537.046 authorizes a civil action for damages for a defendant's conduct
that would have been a violation of one of several enumerated criminal statutes. The Doe
Family's point relied on does not assert that the Diocese and Finn violated section
537.046, but instead alleges that they are liable as aiders and abettors, or for ratifying,
Ratigan's violation of the statute. There are several difficulties with this argument.
First, the only conduct alleged to have involved Doe 413 is Mother and Father's
speculative concern that Ratigan may have taken obscene pictures of Doe 413. Even if
we assume, arguendo, that taking obscene pictures of a child would constitute a violation
22
Count I of the amended petition alleged that Ratigan violated section 537.046, a claim that is not relevant
to this appeal.
29
of one of the predicate criminal statutes identified in section 537.046 (an issue we need
not address), "[m]ere speculation [that such pictures might have been taken] does not
create a genuine issue of material fact." Rustco Products Co., 925 S.W.2d at 923. The
Doe Family cannot establish an essential element of their claim--that Ratigan took
obscene pictures of Doe 413.23 Hanson, 963 S.W.2d at 4 (holding that an issue of
material fact is genuine "only if it is real and substantial; it may not consist 'of conjecture,
theory and possibilities'") (quoting ITT Commercial Fin. Corp., 854 S.W.2d at 378).
Second, the Doe Family cites no authority for the proposition that
"nonperpetrators" can be held liable for a perpetrator's childhood sexual abuse under
section 537.046. In Walker v. Barrett, 650 F.3d 1198, 1208-09 (8th Cir. 2011), the
Eighth Circuit, after observing that no Missouri appellate court had yet addressed the
question, construed section 537.046 as plainly written to limit liability to perpetrators of
childhood sexual abuse. Id. at 1209. We believe the reasoning in Walker is sound:
Section 537.046(1) defines "childhood sexual abuse" as: 'any act committed
by the defendant against the plaintiff which act occurred when the plaintiff
was under the age of eighteen years and which act would have been a
violation of section 566.030 [rape], 566.040 [sexual assault], . . . 566.060
[forcible sodomy], 566.070 [deviate sexual assault], . . . 566.090 [first
degree sexual misconduct], 566.100 [sexual abuse], . . . or section 568.020
[incest] . . . .' A nonperpetrator defendant could not cause injury or illness
by "childhood sexual abuse," as that term is defined, because such a
defendant necessarily has not committed one of the enumerated acts. While
Missouri law does hold an aider and abettor criminally liable to the same
extent as the principal offender, . . . section 537.046 does not enumerate the
statute criminalizing aiding and abetting, [Section] 562.041, as one of the
acts that constitutes "childhood sexual abuse." Accordingly, we conclude
that the Missouri legislature did not intend to subject nonperpetrator
23
The default judgment taken by the Doe Family against Ratigan, which includes a judgment on their claim
that Ratigan violated section 537.046, does not bind the Diocese and Finn. Hayes, 3 S.W.3d at 856 (holding that a
default judgment does not constitute an adjudication on the merits as to support later preclusive effect of the
judgment on another party).
30
defendants to liability under section 537.046. Accord Doe HL v. James,
No. 4:05-CV-2032, 2006 WL 6677124, at *3 (E.D. Mo. Aug. 15, 2006)
(concluding that "[t]he statute defining childhood sexual abuse does not
make an unincorporated association responsible for childhood sexual
abuse" and that "plaintiff cannot assert a claim of childhood sexual abuse . .
. against the [unincorporated association] based on a theory of agency
ratification.").
650 F.3d at 1209. The Doe Family's claim that the Diocese and Finn violated section
537.046 because they aided and abetted, or ratified, Ratigan's violation of the statute fails
as a matter of law.
Even presuming the Doe Family could sue the Diocese and Finn for childhood sex
abuse pursuant to section 537.046 under an aider and abettor or ratification theory, the
Doe Family has not demonstrated a genuine issue of material fact in dispute with respect
to the factual basis for such a claim. The Doe Family's Brief alleges that "[t]he Diocese
and [Finn] provided [Doe 413] to [Ratigan] for the photographing." [Appellants' Brief, p.
63] This inflammatory assertion is not supported by citation to the record and is defied
by uncontroverted evidence that Ratigan's contacts with the Doe Family in March 2011
were privately arranged gatherings in public locations.
Reduced to its essence, the Doe Family's true complaint is that had the Diocese
and Finn "acted in a reasonable manner," Doe 413 "would never have been a victim" of
Ratigan. [Appellants' Brief, p. 63] This assertion is nothing more than a reconstituted
claim of negligence, the lack of cognizability of which we have already addressed and
need not repeat. See Gibson, 952 S.W.2d at 246-49. The trial court did not error in
granting summary judgment on the Doe Family's claim that the Diocese and Finn
violated section 537.046.
31
We next turn to the Doe Family's invasion of privacy claim. In the amended
petition, the Doe Family alleged that "[b]etween December 2010 and May 2011, [Doe
413] began having contact with [Ratigan] and [he] surreptitiously made pornographic,
lewd and lascivious photographs of [Doe 413,] continuing to invade her privacy." [L.F.
349, ¶ 203] It is now uncontroverted that the only occasions where the Doe Family
speculates such photographs might have been taken were in March 2011 at the park and
at the pizza restaurant.
The Diocese and Finn dispute that vicarious liability for the tort of invasion of
privacy can be imposed on the theories of aiding and abetting or ratification. We need
not resolve that issue. The Doe Family's invasion of privacy claim necessarily depends
on an essential element that is the subject of speculation--that Ratigan surreptitiously took
pornographic, lewd and lascivious photographs of Doe 413. Mother and Father's
speculation is insufficient as a matter of law to create a genuine issue of fact in dispute as
to whether Ratigan in fact did so. Rustco Products Co., 925 S.W.2d at 923 ("Mere
speculation does not create a genuine issue of material fact.").
In the argument portion of their Brief, the Doe Family claims that Ratigan violated
section 565.253.1, the crime of invasion of privacy in the second degree. The Doe
Family argues that the Diocese and Finn could be liable as aiders and abettors for this
crime pursuant to section 562.042, the criminal statute addressing criminal responsibility
for the conduct of another. Violation of section 565.253.1 was not alleged as a claim in
the amended petition and was not raised with the trial court to defend the summary
judgment motion. This newly asserted theory of recovery is not preserved for our review,
32
as a party cannot challenge the grant of summary judgment with facts, arguments or
theories that were not presented to the trial court.24 Walden, 427 S.W.3d at 284; Sheedy,
180 S.W.3d at 70-71.
Point Six is denied.
Conclusion
The trial court's Judgment is affirmed.
__________________________________
Cynthia L. Martin, Judge
All concur.
24
We express no opinion, therefore, about whether violation of section 565.253.1 authorizes a private civil
cause of action for invasion of privacy.
33