Norman Redwing v. Catholic Bishop for the Diocese of Memphis

IN THE SUPREME COURT OF TENNESSEE
AT JACKSON
April 7, 2011 Session
NORMAN REDWING v. CATHOLIC BISHOP FOR THE
DIOCESE OF MEMPHIS
Appeal by Permission from the Court of Appeals, Middle Section
Circuit Court for Shelby County
No. CT-005052-08 D’Army Bailey, Judge
No. W2009-00986-SC-R11-CV - Filed February 27, 2012
This appeal involves a dispute regarding the civil liability of the Catholic Diocese of
Memphis for acts of child sexual abuse allegedly perpetrated by one of its priests in the
1970s. A victim of this alleged abuse filed suit against the Bishop of the Catholic Diocese
of Memphis in the Circuit Court for Shelby County seeking monetary damages. The Diocese
moved to dismiss the complaint, arguing that the ecclesiastical abstention doctrine deprived
state courts of subject matter jurisdiction and that the victim’s claims were barred by the
statute of limitations. The trial court denied the Diocese’s motion. The Court of Appeals
held that the statute of limitations had run on the victim’s claims and that the ecclesiastical
abstention doctrine barred state courts from considering the victim’s negligent hiring and
retention claims but not the negligent supervision claims. Redwing v. Catholic Bishop for
Diocese of Memphis, No. W2009-00986-COA-R10-CV, 2010 WL 2106222 (Tenn. Ct. App.
May 27, 2010). We granted the victim’s Tenn. R. App. P. 11 application for permission to
appeal. We have concluded that the Court of Appeals erred by concluding that the state
courts lack subject matter jurisdiction over the victim’s claims and that the victim’s claims
are barred by the statute of limitations.
Tenn. R. App. P. 11 Appeal by Permission; Judgment of the Court of Appeals
Reversed
W ILLIAM C. K OCH, J R., J., delivered the opinion of the Court, in which C ORNELIA A. C LARK,
C.J., JANICE M. H OLDER, G ARY R. W ADE, and S HARON G. L EE, JJ., joined.
Gary K. Smith and Karen M. Campbell, Memphis, Tennessee, for the appellant, Norman
Redwing.
John H. Dotson and Casey Shannon, Memphis, Tennessee, for the appellee, Catholic Bishop
for the Diocese of Memphis.
OPINION
I.
The facts in this opinion are drawn from the allegations in the complaint. No trial has
occurred. Neither party has presented evidence, and no facts have been found by a fact-
finder. Because this case comes to us as an appeal from a denial of a motion to dismiss, the
applicable standard of review requires us to presume that the allegations in the complaint are
true. Our decision to include in this opinion any particular factual allegation found in the
complaint should not be construed as a conclusive finding-of-fact that prevents the parties
from presenting evidence regarding the fact or that prevents the trial court or the jury from
making contradictory findings-of-fact based on the evidence actually presented by the parties.
Norman Redwing1 was born in August 1960 and was raised in a Roman Catholic
home. His childhood was turbulent. He was raped by an adult male when he was seven
years old. The trauma remained long after the event, and by the time he was twelve, Mr.
Redwing began to run away from home on a regular basis.
Between 1972 and 1974, Mr. Redwing attended mass regularly at Holy Names
Catholic Church in Memphis. There he came to know Father Milton Guthrie. On the
occasions when Mr. Redwing ran away from home, Fr. Guthrie allowed him to stay at the
church. These acts of kindness caused Mr. Redwing to admire and respect priests in general
and Fr. Guthrie in particular. Mr. Redwing respected Fr. Guthrie not only for his acts of
kindness but also for his involvement in the civil rights movement.
Eventually, Mr. Redwing confided to Fr. Guthrie that he had been raped when he was
seven years old. At first, Fr. Guthrie responded with kindness and understanding. He made
breakfast for Mr. Redwing when he spent the night at the church and gave him pocket money
from time to time. However, after a time, Mr. Redwing alleges that Fr. Guthrie began to take
advantage of him. He states that Fr. Guthrie began to touch him in inappropriate ways and
eventually inveigled him into a physical relationship that included oral sex.
In August 2008, over thirty years after the alleged acts of sexual abuse occurred, Mr.
Redwing filed suit in the Circuit Court for Shelby County against the “Catholic Bishop for
1
Mr. Redwing, who is an adult, has elected to proceed under his name rather than as a pseudonym.
We abide by this decision and refer to Mr. Redwing using his proper name rather than an anonymity-
preserving designation.
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the Diocese of Memphis.”2 He did not name Fr. Guthrie as a defendant based on his
understanding that Fr. Guthrie had died.
Mr. Redwing alleged that the Diocese breached its fiduciary duties and acted
negligently with regard to the hiring, retention, and supervision of Fr. Guthrie. Mr. Redwing
also alleged that the Diocese was aware or should have been aware that Fr. Guthrie was “a
dangerous sexual predator with a depraved sexual interest in young boys” and that the
Diocese misled him and his family regarding its “knowledge of Father Guthrie’s history and
propensity for committing sexual abuse upon minors.” According to Mr. Redwing’s
complaint, “[a]fter finding out about Father Guthrie’s abuse of minors, the Diocese actively
took steps to protect Father Guthrie, conceal the Diocese’s own wrongdoing in supervising
Father Guthrie, and prevent Norman Redwing and other victims of Father Guthrie from filing
civil lawsuits.”
The Diocese denied the allegations in Mr. Redwing’s complaint. On October 22,
2008, the Diocese filed a Tenn. R. Civ. P. 12.02 motion seeking dismissal of the complaint
on two grounds. First, in accordance with Tenn. R. Civ. P. 12.02(1), the Diocese asserted
that the complaint should be dismissed for lack of subject matter jurisdiction based on the
ecclesiastical abstention or church autonomy doctrine.3 Second, in accordance with Tenn.
R. Civ. P. 12.02(6), the Diocese argued that the statute of limitations barred Mr. Redwing’s
complaint. The Diocese noted that three decades had passed since the alleged abuse occurred
and that nearly three decades had passed since the expiration of the statute of limitations.
The Diocese also asserted that neither the discovery rule, fraudulent concealment, nor
equitable estoppel could be used to toll the running of the statute of limitations.
2
Mr. Redwing’s amended complaint identifies the defendant as follows: “Defendant CATHOLIC
BISHOP FOR THE DIOCESE OF MEMPHIS, a corporation sole, (the “Diocese”) is a religious organization
responsible for the interests of the Roman Catholic Church in Western Tennessee.” Based on this statement,
we will refer to the defendant in this case as the “Diocese.”
3
The ecclesiastical abstention doctrine is also known as the church autonomy doctrine. See Two
Rivers Baptist Church v. Sutton, No. M2008-01730-COA-R3-CV, 2010 WL 2025444, at *4 (Tenn. Ct. App.
May 20, 2010) (quoting Anderson v. Watchtower Bible and Tract Soc’y of N.Y., Inc., No.
M2004-01066-COA-R9-CV, 2007 WL 161035, at *4 (Tenn. Ct. App. Jan. 19, 2007)). The origin of the term
church autonomy doctrine as a substitute for the ecclesiastical abstention doctrine has been attributed to a
1981 law review article by Professor Douglas Laycock. Robert Joseph Renaud & Lael Daniel Weinberger,
Spheres of Sovereignty: Church Autonomy Doctrine and the Theological Heritage of the Separation of
Church and State, 35 N. Ky. L. Rev. 67, 88 (2008); see Chad Olsen, Comment, In the Twenty-First Century’s
Marketplace of Ideas, Will Religious Speech Continue to Be Welcome?: Religious Speech as Grounds for
Defamation, 37 Tex. Tech L. Rev. 497, 506 n.98 (2005). For the purpose of this opinion, we will refer to
this doctrine as the “ecclesiastical abstention doctrine.”
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On April 15, 2009, Mr. Redwing filed a memorandum in opposition to the Diocese’s
motion to dismiss. He argued that the ecclesiastical abstention doctrine did not prevent the
state courts from exercising jurisdiction over his complaint. He also asserted that appropriate
grounds exist for tolling the statute of limitations, including fraudulent concealment,
equitable estoppel, and the discovery rule.
The trial court conducted hearings on the Diocese’s motion on April 17 and 20, 2009.
On April 22, 2009, the trial court filed an order denying the motion. The court did not
explain its reasoning with regard to the ecclesiastical abstention doctrine. With regard to the
statute of limitations, the trial court stated that “the record does not establish as a matter of
law that sufficient facts as to defendant’s potential liability could have been known more than
a year prior to the filing of the lawsuit.”
Two days after the entry of the trial court’s order, the Diocese filed motions seeking
permission to pursue an interlocutory appeal pursuant to Tenn. R. App. P. 9 and to stay the
proceedings pending the interlocutory appeal. Mr. Redwing opposed both motions. On May
13, 2009, the trial court filed an order declining to approve an interlocutory appeal or a stay.
Pursuant to Tennessee Rule of Appellate Procedure 10, the Diocese immediately filed
an application for an extraordinary appeal to the Court of Appeals. On May 14, 2009, the
Court of Appeals directed Mr. Redwing to file a response. Mr. Redwing did so. On July 1,
2009, the Court of Appeals granted the Diocese’s Rule 10 application for permission to
appeal and stayed the proceedings in the trial court pending the appeal.
On May 27, 2010, the Court of Appeals handed down Redwing v. Catholic Bishop for
Diocese of Memphis, No. W2009-00986-COA-R10-CV, 2010 WL 2106222 (Tenn. Ct. App.
May 27, 2010). With regard to the Diocese’s defense predicated on the ecclesiastical
abstention doctrine, the court drew a distinction between Mr. Redwing’s negligent
supervision claim and his negligent hiring and retention claims and held unanimously that
the latter claims were barred by the ecclesiastical abstention doctrine but that the former
claim was not. The Court of Appeals did not separately address Mr. Redwing’s breach of
fiduciary duty claim.
The Court of Appeals split, however, with regard to the Bishop’s statute of limitations
defense. The majority of the panel concluded that Mr. Redwing was on inquiry notice when
he reached the age of majority because he knew he had been abused, he knew who his abuser
was, and he knew that his abuser was employed by the Diocese. Redwing v. Catholic Bishop
for Diocese of Memphis, 2010 WL 2106222, at *7. The majority decided that Mr. Redwing’s
“conclusory allegation that he exercised reasonable care and diligence is not sufficient to
prevent dismissal of the complaint as time-barred [because] the rest of the complaint belies
the allegation.” Redwing v. Catholic Bishop for Diocese of Memphis, 2010 WL 2106222,
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at *7. In the majority’s view, if Mr. Redwing had filed suit when he reached eighteen years
of age, “discovery in that case would have ‘provided a mechanism for [him] to learn that the
Diocese had been negligent.’” Redwing v. Catholic Bishop for Diocese of Memphis, 2010
WL 2106222, at *7 (quoting Doe v. Catholic Bishop for Diocese of Memphis, 306 S.W.3d
712, 730 (Tenn. Ct. App. 2008)).
In her dissenting opinion, Judge Kirby concluded that the majority’s dismissal of Mr.
Redwing’s claims was premature in the context of an appeal of a motion to dismiss. Redwing
v. Catholic Bishop for Diocese of Memphis, 2010 WL 2106222, at *10. Judge Kirby noted
that Mr. Redwing had alleged in his complaint that the Diocese had undertaken to conceal
its wrongdoing and that the Diocese had misled Mr. Redwing. Redwing v. Catholic Bishop
for Diocese of Memphis, 2010 WL 2106222, at *8. Judge Kirby also concluded that Mr.
Redwing was not on inquiry notice with regard to the Diocese’s wrongdoing and that even
if Mr. Redwing had promptly filed a lawsuit that he likely would not have discovered the
Diocese’s involvement. Redwing v. Catholic Bishop for Diocese of Memphis, 2010 WL
2106222, at *9.
Mr. Redwing filed a Tenn. R. App. P. 11 application for permission to appeal on July
26, 2010. We granted his application on December 7, 2010. Mr. Redwing insists that the
trial court possesses subject matter jurisdiction to adjudicate his breach of fiduciary duty
claim, as well as his claims for negligent hiring, supervision, and retention. He also insists
that the Court of Appeals erred by holding that his claims were time-barred. For its part, the
Diocese asserts that the trial court lacks subject matter jurisdiction over any of Mr.
Redwing’s claims and that the Court of Appeals correctly found that Mr. Redwing’s claims
were barred by the statute of limitations.
Accordingly, this case squarely presents two issues. The first issue is whether,
pursuant to the ecclesiastical abstention doctrine, Tennessee’s courts should decline to
adjudicate Mr. Redwing’s claims for breach of fiduciary duty and for negligent hiring,
supervision, and retention against the Diocese. If Tennessee’s courts possess subject matter
jurisdiction to adjudicate all or any of these claims, the second issue is whether Mr.
Redwing’s claims are barred by the statute of limitations.
II.
We turn first to the Diocese’s facial challenge to the subject matter jurisdiction of
Tennessee’s courts to adjudicate Mr. Redwing’s claims. The Diocese asserts that the
ecclesiastical abstention doctrine requires state courts to refrain from adjudicating issues
involving theological or spiritual judgment or the internal governance of religious
institutions. Mr. Redwing responds that this Court should not permit the Diocese to use the
ecclesiastical abstention doctrine to “avoid accountability for the particularly egregious
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breach of trust of sexual abuse by clergy” and that adjudicating his claims will not require
the courts to become excessively entangled in religious doctrine. While the correct path
between the secular and the religious is narrow, we have determined that Tennessee’s courts
may adjudicate Mr. Redwing’s claims without straying into areas that are properly within the
Diocese’s exclusive domain.
A.
A motion to dismiss for lack of subject matter jurisdiction falls within the purview of
Tenn. R. Civ. P. 12.02(1). Challenges to a court’s subject matter jurisdiction call into
question the court’s “lawful authority to adjudicate a controversy brought before it,”
Northland Ins. Co. v. State, 33 S.W.3d 727, 729 (Tenn. 2000), and, therefore, should be
viewed as a threshold inquiry. Schmidt v. Catholic Diocese of Biloxi, 2008-CA-00416-SCT
(¶ 13), 18 So. 3d 814, 821 (Miss. 2009). Whenever subject matter jurisdiction is challenged,
the burden is on the plaintiff to demonstrate that the court has jurisdiction to adjudicate the
claim. See Staats v. McKinnon, 206 S.W.3d 532, 543 (Tenn. Ct. App. 2006); 1 Lawrence A.
Pivnick, Tennessee Circuit Court Practice § 3:2 (2011 ed.) (“Pivnick”).4
Litigants may take issue with a court’s subject matter jurisdiction using either a facial
challenge or a factual challenge. See, e.g., Schutte v. Johnson, 337 S.W.3d 767, 769-70
(Tenn. Ct. App. 2010); Staats v. McKinnon, 206 S.W.3d at 542.5 A facial challenge is a
challenge to the complaint itself. See Schutte v. Johnson, 337 S.W.3d at 769. Thus, when
a defendant asserts a facial challenge to a court’s subject matter jurisdiction, the factual
allegations in the plaintiff’s complaint are presumed to be true. See, e.g., Staats v.
McKinnon, 206 S.W.3d at 542-43.
Alternatively, “[a] factual challenge denies that the court actually has subject matter
jurisdiction as a matter of fact even though the complaint alleges facts tending to show
4
Federal courts construing Fed. R. Civ. P. 12(b)(2) likewise place the burden of persuasion on the
plaintiff when subject matter jurisdiction is challenged. See, e.g., Morrison v. Nat’l Austl. Bank, 547 F.3d
167, 170 (2nd Cir. 2008). The Tennessee Rules of Civil Procedure are largely modeled on the Federal Rules
of Civil Procedure. See Thomas v. Oldfield, 279 S.W.3d 259, 262 (Tenn. 2009). While the federal courts’
construction of federal rules analogous to our own is not binding on us, Webb v. Nashville Area Habitat for
Humanity, Inc., 346 S.W.3d 422, 430 (Tenn. 2011) (quoting Harris v. Chern, 33 S.W.3d 741, 745 n.2 (Tenn.
2000)), we may, and often do, look to the federal courts’ interpretation of comparable federal rules for
guidance. See Gordon v. Greenview Hosp., Inc., 300 S.W.3d 635, 643 n.3 (Tenn. 2009); Frazier v. East
Tenn. Baptist Hosp., Inc., 55 S.W.3d 925, 928 (Tenn. 2001); Harris v. Chern, 33 S.W.3d at 745 n.2.
5
Federal courts likewise distinguish between facial challenges and factual challenges to subject
matter jurisdiction. 2 James Wm. Moore et al., Moore’s Federal Practice and Procedure § 12.30[4], at 12-
45 (3d ed. 2009).
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jurisdiction.” Staats v. McKinnon, 206 S.W.3d at 543. Thus, the factual challenge “attacks
the facts serving as the basis for jurisdiction.” Schutte v. Johnson, 337 S.W.3d at 770.6
For the purposes of its motion to dismiss, the Diocese accepted the facts contained in
Mr. Redwing’s amended complaint. The Diocese asserts that, even positing these facts as
true, Tennessee’s courts are without subject matter jurisdiction to adjudicate Mr. Redwing’s
claims. Accordingly, the Diocese’s challenge to the trial court’s subject matter jurisdiction
is facial, not factual. Therefore, the trial court’s decision regarding the existence of subject
matter jurisdiction is a question of law. It follows, therefore, that we will review the lower
courts’ conclusions regarding subject matter jurisdiction without a presumption of
correctness. See Northland Ins. Co. v. State, 33 S.W.3d at 729; see also Schutte v. Johnson,
337 S.W.3d at 769.
B.
The ecclesiastical abstention doctrine recognizes a type of “spiritual federalism.”
Rodney A. Smolla, Words “Which by Their Very Utterance Inflict Injury”: The Evolving
Treatment of Inherently Dangerous Speech in Free Speech Law and Theory, 36 Pepp. L.
Rev. 317, 329 (2009). It reflects the principle that secular courts in the United States should
normally “abstain” from adjudicating issues involving theological or spiritual judgment or
the internal governance of religious bodies and, instead, should leave these matters to
appropriate religious tribunals. Rodney A. Smolla, 1 Rights and Liabilities in Media Content
§ 6:25 (2d ed. 2011).
The birth of the ecclesiastical abstention doctrine has been traced to the United States
Supreme Court’s 1872 decision in Watson v. Jones. Rodney A. Smolla, 1 Law of Defamation
§ 6:74 (2d ed. 2011); Jana R. McCreary, Tell Me No Secrets: Sharing, Discipline, and the
Clash of Ecclesiastical Abstention and Psychotherapeutic Confidentiality, 29 Quinnipiac L.
Rev. 77, 88 (2011). In that case, the United States Supreme Court stated:
In this country[,] . . . [t]he law knows no heresy, and is
committed to the support of no dogma, the establishment of no
sect. The right to organize voluntary religious associations to
assist in the expression and dissemination of any religious
doctrine, and to create tribunals for the decision of controverted
questions of faith within the association, and for the
6
The principles and procedures governing factual challenges to a court’s subject matter jurisdiction
are not the same as the principles and procedures governing facial challenges to a court’s subject matter
jurisdiction. We need not address or discuss these differences in this appeal because the Diocese’s challenge
to the trial court’s subject matter jurisdiction is a facial challenge.
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ecclesiastical government of all the individual members,
congregations, and officers within the general association, is
unquestioned. All who unite themselves to such a body do so
with an implied consent to this government, and are bound to
submit to it. But it would be a vain consent and would lead to
the total subversion of such religious bodies, if any one
aggrieved by one of their decisions could appeal to the secular
courts and have them reversed. It is of the essence of these
religious unions, and of their right to establish tribunals for the
decision of questions arising among themselves, that those
decisions should be binding in all cases of ecclesiastical
cognizance, subject only to such appeals as the organism itself
provides for.
Nor do we see that justice would be likely to be promoted
by submitting those decisions to review in the ordinary judicial
tribunals. Each of these large and influential bodies (to mention
no others, let reference be had to the Protestant Episcopal, the
Methodist Episcopal, and the Presbyterian churches), has a body
of constitutional and ecclesiastical law of its own, to be found
in their written organic laws, their books of discipline, in their
collections of precedents, in their usage and customs, which as
to each constitute a system of ecclesiastical law and religious
faith that tasks the ablest minds to become familiar with. It is
not to be supposed that the judges of the civil courts can be as
competent in the ecclesiastical law and religious faith of all
these bodies as the ablest men in each are in reference to their
own. It would therefore be an appeal from the more learned
tribunal in the law which should decide the case, to one which
is less so.
Watson v. Jones, 80 U.S. 679, 728-29 (1872). Returning to Watson v. Jones eight decades
later, the United States Supreme Court noted that
[t]he opinion radiates . . . a spirit of freedom for religious
organizations, an independence from secular control or
manipulation, in short, power to decide for themselves, free
from state interference, matters of church government as well as
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those of faith and doctrine. Freedom to select the clergy . . .7 we
think, must now be said to have federal constitutional protection
as a part of the free exercise of religion against state
interference.
Kedroff v. St. Nicholas Cathedral of Russian Orthodox Church in N. Am., 344 U.S. 94, 116
(1952) (footnote omitted and added).
In a later case involving a dispute over the ownership of church property between
local churches and a national organization, the United States Supreme Court noted that “there
are neutral principles of law, developed for use in all property disputes, which can be applied
without ‘establishing’ churches to which property is awarded.” Presbyterian Church in U.S.
v. Mary Elizabeth Blue Hull Mem’l Presbyterian Church, 393 U.S. 440, 442, 449 (1969).
However, the Court added that
First Amendment values are plainly jeopardized when church
property litigation is made to turn on the resolution by civil
courts of controversies over religious doctrine and practice. If
civil courts undertake to resolve such controversies in order to
adjudicate the property dispute, the hazards are ever present of
inhibiting the free development of religious doctrine and of
implicating secular interests in matters of purely ecclesiastical
concern.
7
The language omitted from the quoted portion of Kedroff purported to limit the holding to
circumstances “where no improper methods of choice are proven.” The Kedroff Court in a footnote tied this
reference to language in Gonzalez v. Roman Catholic Archbishop of Manila, 280 U.S. 1, 16-17 (1929), which
“has been regarded as dicta.” 6 Ronald D. Rotunda & John E. Nowak, Treatise on Constitutional Law §
21.12, at 235 (4th ed. 2008). In 1976, the United States Supreme Court held that
civil courts are bound to accept the decisions of the highest judicatories of a religious
organization of hierarchical polity on matters of discipline, faith, internal organization, or
ecclesiastical rule, custom, or law. For civil courts to analyze whether the ecclesiastical
actions of a church judicatory are in that sense “arbitrary” must inherently entail inquiry into
the procedures that canon or ecclesiastical law supposedly requires the church judicatory
to follow, or else in to the substantive criteria by which they are supposedly to decide the
ecclesiastical question. But this is exactly the inquiry that the First Amendment prohibits;
recognition of such an exception would undermine the general rule that religious
controversies are not the proper subject of civil court inquiry, and that a civil court must
accept the ecclesiastical decisions of church tribunals as it finds them.
Serbian E. Orthodox Diocese for U.S. and Can. v. Milivojevich, 426 U.S. 696, 713 (1976).
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Presbyterian Church in U.S. v. Mary Elizabeth Blue Hull Mem’l Presbyterian Church, 393
U.S. at 449. Based on this holding, the United States Supreme Court determined that the
Georgia Supreme Court violated the First Amendment by exercising jurisdiction over a
property dispute that required it to rule upon two disputed religious questions. Presbyterian
Church in U.S. v. Mary Elizabeth Blue Hull Mem’l Presbyterian Church, 393 U.S. at 449-50.
In 1976, echoing its holdings in Watson, Kedroff, and Presbyterian Church in United
States, the United States Supreme Court noted that “civil courts are bound to accept the
decisions of the highest judicatories of a religious organization of hierarchical polity on
matters of discipline, faith, internal organization, or ecclesiastical rule, custom, or law” and
that a civil court in the United States must leave “ecclesiastical decisions . . . as it finds them”
because they lack jurisdiction to decide “religious controversies.” Serbian E. Orthodox
Diocese for U.S. and Can. v. Milivojevich, 426 U.S. at 713.
Three years later, the United States Supreme Court reviewed another decision by the
Georgia Supreme Court involving a dispute over church property caused by a schism within
a local Presbyterian congregation. The Georgia Supreme Court resolved the dispute in favor
of the majority of the local congregation employing what the court called the neutral
principles of law method. Jones v. Wolf, 443 U.S. 595, 599-601 (1979). In theory, “[t]he
method relies exclusively on objective, well-established concepts of trust and property law
familiar to lawyers and judges. It thereby promises to free civil courts completely from
entanglement in questions of religious doctrine, polity, and practice.” Jones v. Wolf, 443
U.S. at 603. While the Court approved the Georgia Supreme Court’s use of the neutral
principles of law analysis, see Jones v. Wolf, 443 U.S. at 602-07, it vacated the decision
because the Georgia Supreme Court had not articulated the basis for deciding the case in
favor of the majority of the local congregation. Jones v. Wolf, 443 U.S. at 609-10. The
Court pointed out that if the decision regarding which faction represents the church involves
“considerations of religious doctrine and polity,” the Georgia courts must defer “to the
presbyterial commission’s determination of that church’s identity.” Jones v. Wolf, 443 U.S.
at 608-09.
C.
This Court strongly embraced the ecclesiastical abstention doctrine twenty years after
the United States Supreme Court decided Watson v. Jones. Noting that “[t]he weight to be
attached to the decisions of such ecclesiastical jurisdictions is well stated by Mr. Justice
Miller in the great case of Watson v. Jones,” Nance v. Busby, 91 Tenn. 303, 326, 18 S.W.
874, 879 (1892), this Court declared that
[t]he relations of a member to his church are not contractual. No
bond of contract, express or implied, connects him with his
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communion, or determines his rights. Church relationship
stands upon an altogether higher plane, and church membership
is not to be compared to that resulting from connection with
mere human associations for profit, pleasure, or culture. The
church undertakes to deal only with the spiritual state of man.
It does not appeal to his purely human and temporal interests.
Admission to its fold is prescribed alone by the church,
professing to act only upon the word of God. It claims the
power of the keys by divine and not human authority. Its right
to determine the grounds of admission has never been
questioned. . . . Civil courts deal only with civil and property
rights. They have, in this country, no ecclesiastical jurisdiction.
. . . We are not to be understood as approving an expulsion from
church membership by irregular methods, and without notice to
the member. But here we have a fact to be dealt with – the fact
that this church, sitting as a church, has determined for itself that
it had the power and the right to exclude these complainants.
They have, as a judicature, adjudged that they had the
jurisdiction, and that the usage and law of the church did not
demand other trial or notice than such as attended the public
action of the church. . . . They may have erred in their
procedure. It is not for a civil court to revise their action in a
matter so vital to their freedom as a church. Defendants, in their
answer, say: “They protest as a church against the effort of
complainants to be reinstated to church membership by an
appeal to the civil courts.” “This church,” say they, “with all
deference to the honorable court, claims that in all matters
purely ecclesiastical it is her prerogative, untrammeled by any
earthly tribunal, to deal with its members, and that no civil
tribunal is invested with the jurisdiction to annul its solemn
decrees of excommunication of its members. It was never
intended that the law should measure the religious stature of the
citizen. Should a chancellor adjudicate who shall partake of the
Lord’s Supper, or shall any church stand a supplicant before any
earthly judicature, and receive a reversal of a judgment of
expulsion.” These be strong words, but true.
Nance v. Busby, 91 Tenn. at 324-26, 18 S.W. at 879.
Over the course of more than a century following the Nance v. Busby decision,
Tennessee’s courts have continued to recognize ecclesiastically required jurisdictional
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limitations on civil courts. Thus, the ecclesiastical abstention doctrine has been applied to
preclude judicial review of matters involving religious institutions that are ecclesiastical and
internal in nature. See Mason v. Winstead, 196 Tenn. 268, 272-73, 265 S.W.2d 561, 563
(Tenn. 1954) (removal of a minister); Travers v. Abbey, 104 Tenn. 665, 668, 58 S.W. 247,
247-48 (1900) (removal of a minister).
However, the application of the ecclesiastical abstention doctrine has not been
extended to “questions of property or personal rights.” See Travers v. Abbey, 104 Tenn. at
668, 58 S.W. at 247 (noting that applying the ecclesiastical abstention doctrine in the case
did not “involve any questions of property or personal rights”). With regard to external
affairs of religious institutions, this Court has applied the doctrine as a limit on the authority
of civil courts to evaluate religious doctrine but has permitted adjudications based upon
neutral principles. See, e.g., Book Agents of Methodist Episcopal Church, S. v. State Bd. of
Equalization, 513 S.W.2d 514, 524-25 (Tenn. 1974) (rejecting the Court of Appeals test for
assessing the taxability of religious publications “based on whether the particular book or
activity adhered to the ‘doctrine and practice’ or ‘religious faith’ of the respective
denominations” in favor of a test that did not turn upon an assessment of religious doctrine).
D.
The Diocese asserts that even if the factual allegations in Mr. Redwing’s complaint
are taken as true, the doctrine of ecclesiastical abstention deprives Tennessee’s civil courts
of subject matter jurisdiction over Mr. Redwing’s negligent hiring, retention, and supervision
claims, as well as his breach of fiduciary duty claims. Mr. Redwing responds that the
Diocese’s facial challenge to the trial court’s subject matter jurisdiction should fail because
the ecclesiastical abstention doctrine should not be extended to apply to his claims in this
case. We have concluded that the trial court has subject matter jurisdiction to adjudicate all
of Mr. Redwing’s claims and, therefore, that the Court of Appeals erred by concluding that
the trial court lacked subject matter jurisdiction over Mr. Redwing’s negligent hiring and
retention claims.
There can be little question that the state and federal courts are currently sharply
divided regarding the courts’ subject matter jurisdiction over suits involving claims similar
to those asserted by Mr. Redwing in this case. See, e.g., Petrell v. Shaw, 902 N.E.2d 401,
408 n.6 (Mass. 2009) (noting that courts are divided on whether constitutional protections
bar certain tort suits against religious institutions based upon the actions of members of the
clergy). Reflecting on these conflicting decisions, the Mississippi Supreme Court recently
noted that “any reasonable research of the issue will yield abundant cases, cites, quotes and
authority for the position taken by both the Diocese and the [victims], as well as other
positions cited by neither.” Roman Catholic Diocese of Jackson v. Morrison, 2003-IA-
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00743-SCT (¶ 22), 905 So. 2d 1213, 1223 (Miss. 2005) (collecting conflicting cases in
appendices).
Our analysis begins with the recognition that religious institutions exist and function
in the context of the broader secular community. See Dobrota v. Free Serbian Orthodox
Church St. Nicholas, 952 P.2d 1190, 1195 (Ariz. Ct. App. 1998). The courts do not inhibit
the free exercise of religion simply by opening their doors to a suit involving a religious
organization. Presbyterian Church in U.S. v. Mary Elizabeth Blue Hull Mem’l Presbyterian
Church, 393 U.S. at 449. Thus, the weight of authority recognizes that religious institutions
are not above the law, see e.g., Skrzypczak v. Roman Catholic Diocese of Tulsa, 611 F.3d
1238, 1244-45 (10th Cir. 2010) (quoting Rayburn v. General Conference of Seventh Day
Adventists, 772 F.2d 1164, 1171 (4th Cir. 1985)), and that, like other societal institutions,
they may be amenable to suits involving property rights, torts, and criminal conduct, see e.g.,
Dobrota v. Free Serbian Orthodox Church St. Nicholas, 952 P.2d at 1195; Thibodeau v.
American Baptist Churches of Conn., 994 A.2d 212, 219 (Conn. App. Ct. 2010); Higgins v.
Maher, 258 Cal. Rptr. 757, 758 (Dist. Ct. App. 1989); Tran v. Fiorenza, 934 S.W.2d 740, 743
(Tex. Ct. App. 1996); see also Moses v. Diocese of Colo., 863 P.2d 310, 320 (Colo. 1993)
(indicating that religious institutions do not have “broad immunity against being sued in civil
courts”).
In civil cases, the ecclesiastical abstention doctrine is implicated only when the
alleged improper conduct that gave rise to the lawsuit is “rooted in religious belief.” Bryce
v. Episcopal Church in the Diocese of Colo., 289 F.3d 648, 657 (10th Cir. 2002); McKelvey
v. Pierce, 800 A.2d 840, 851 (N.J. 2002). Adjudication of disputes by state courts is
appropriate in matters involving religious institutions, as long as the court can resolve the
dispute by applying neutral legal principles and is not required to employ or rely on religious
doctrine to adjudicate the matter. See Jones v. Wolf, 443 U.S. at 602-07; New York Annual
Conference of United Methodist Church v. Fisher, 438 A.2d 62, 68 (Conn. 1980) (holding
that “[i]t is now well established that state judicial intervention is justified when it can be
accomplished by resort to neutral principles of law . . . that eschew consideration of doctrinal
matters such as the ritual and liturgy of worship or the tenets of faith.”); McKelvey v. Pierce,
800 A.2d at 856 (holding that the First Amendment does not apply if “the dispute can be
resolved by the application of purely neutral principles of law and without impermissible
government intrusion (e.g., where the church offers no religious-based justification for its
actions and points to no internal governance rights that would actually be affected)”); Lacy
v. Bassett, 132 S.W.3d 119, 123 (Tex. Ct. App. 2004) (noting that “a state may adopt an
approach, including neutral principles of law, for resolving church disputes that do not
involve consideration of doctrinal matters”).
Adopting a more expansive application of the ecclesiastical abstention doctrine runs
the risk of placing religious institutions in a preferred position, Sanders v. Casa View Baptist
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Church, 134 F.3d 331, 336 (5th Cir. 1998), and favoring religious institutions over secular
institutions could give rise to Establishment Clause concerns. See Zanita E. Fenton, Faith
in Justice: Fiduciaries, Malpractice & Sexual Abuse by Clergy, 8 Mich. J. Gender & L. 45,
75 (2001) (noting that “non-application of tort principles where they might otherwise apply
may be more like Establishment, creating an exception for religion”). Employing the
application of the neutral legal principles approach enables the courts to “give no greater or
lesser deference to tortious conduct committed on third parties by religious organizations
than we do to tortious conduct committed on third parties by non-religious entities.” Malicki
v. Doe, 814 So. 2d 347, 361 (Fla. 2002).
In addition to the Establishment Clause concerns, adopting an expansive application
of the ecclesiastical abstention doctrine that would include claims such as those made by Mr.
Redwing in this case runs counter to the recognition that the justifications for the
ecclesiastical abstention doctrine are “at their lowest ebb” in circumstances where religious
institutions or their employees “harm innocent and unconsenting third parties.” Marci A.
Hamilton, Religious Institutions, the No-Harm Doctrine, and the Public Good, 2004 B.Y.U.
L. Rev. 1099, 1115 (2004). In fact, then-Justice Rehnquist, in ruling on a petition for stay
as a circuit justice, declared that
[t]here are constitutional limitations on the extent to which a
civil court may inquire into and determine matters of
ecclesiastical cognizance and polity in adjudicating intrachurch
disputes. See Serbian Eastern Orthodox Diocese v.
Milivojevich. But this Court never has suggested that those
constraints similarly apply outside the context of such
intraorganization disputes. Thus, Serbian Eastern Orthodox
Diocese and the other cases cited by applicant are not in point.
Those cases are premised on a perceived danger that in
resolving intrachurch disputes the State will become entangled
in essentially religious controversies or intervene on behalf of
groups espousing particular doctrinal beliefs. Such
considerations are not applicable to purely secular disputes
between third parties and a particular defendant, albeit a
religious affiliated organization, in which fraud, breach of
contract, and statutory violations are alleged.
Gen. Council on Fin. and Admin. of United Methodist Church v. Superior Ct. of Cal., San
Diego Cnty., 439 U.S. 1355, 1372-73 (1978) (citation omitted); see also Roman Catholic
Diocese of Jackson v. Morrison, 2003-IA-00743-SCT (¶ 69), 905 So. 2d at 1236 (stating that
“[w]e read Watson [v. Jones] to hold only that civil courts may not take jurisdiction over a
religious organization’s internal, ecclesiastical matters”).
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Claims against a religious institution asserting the negligent hiring of a member of the
clergy do not inevitably enmesh the courts in religious doctrine or dogma. Accordingly, the
Ohio Supreme Court has held that “even the most liberal construction of the First
Amendment will not protect a religious organization’s decision to hire someone who it
knows is likely to commit criminal or tortious acts.” Byrd v. Faber, 565 N.E.2d 584, 590
(Ohio 1991). Similarly, Justice William R. Roy of the Supreme Court of Onondaga County,
New York denied a motion to dismiss similar to the one filed by the Bishop in this case,
stating that if the
plaintiffs are successful in establishing that, with knowledge that
the priest was likely to commit sexual abuse on youths with
whom he was put in contact, his employers placed or continued
him in a setting in which such abuse occurred, the fact that the
placement occurred in the course of internal administration of
the religious units does not preclude holding the institutions
accountable to the victim of their neglect in administration.
Indeed, a contrary holding – that a religious body must be held
free from any responsibility for wholly predictable and
foreseeable injurious consequences of personnel decisions,
although such decisions incorporate no theological or dogmatic
tenets – would go beyond First Amendment protection and cloak
such bodies with an exclusive immunity greater than that
required for the preservation of the principles constitutionally
safeguarded.
Jones ex rel. Jones v. Trane, 591 N.Y.S.2d 927, 932 (Sup. Ct. 1992); see also, e.g., Prince
of Peace Lutheran Church v. Linklater, 28 A.3d 1171, 1184 (Md. 2011) (quoting Jones ex
rel. Jones v. Trane, 591 N.Y.S.2d at 932); McKelvey v. Pierce, 800 A.2d at 857 (same);
Smith v. Privette, 495 S.E.2d 395, 398 (N.C. Ct. App. 1998) (same).
Based on our consideration of the decisions in similar cases handed down by our
colleagues on other state and federal courts, we have concluded that the ecclesiastical
abstention doctrine does not necessarily immunize religious institutions from all claims for
damages based on negligent hiring, supervision, or retention. Tennessee’s courts may
address these claims, as long as they can do so using neutral principles of law and can refrain
from resolving religious disputes and from relying on religious doctrine. See Jones v. Wolf,
443 U.S. at 602-07.
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E.
In this case, the Diocese has not asserted any religious foundation for the alleged
conduct upon which Mr. Redwing’s claims are based. In fact, the Diocese strongly insists
that any such actions would be directly contrary to the beliefs, teachings, and principles of
the Roman Catholic Church. The Diocese does contend, however, that any adjudication of
Mr. Redwing’s negligent hiring, supervision, and retention claims will necessarily require
addressing church doctrine and practices. On this basis, the Diocese argues that the
ecclesiastical abstention bar applies.
The Diocese’s argument overreaches the bounds of the protections afforded the
ecclesiastical abstention doctrine.8 See generally Watson v. Jones, 80 U.S. at 731 (quoting
Harmon v. Dreher, 17 S.C. Eq. (Speers Eq.) 87 (1843) (Johnston, Ch.)) (noting that “[w]hen
a civil right depends upon an ecclesiastical matter, . . . the civil tribunal tries the civil right,
and no more, taking the ecclesiastical decisions out of which the civil right arises as it finds
them”). The United States Supreme Court has noted that the First Amendment does not
require “the States to adopt a rule of compulsory deference to religious authority in resolving
church property disputes, even where no issue of doctrinal controversy is involved.” Jones
v. Wolf, 443 U.S. at 605. However, the Court has also noted that if a court is required to
resolve a religious controversy, it must “defer to the resolution of the doctrinal issue by the
authoritative ecclesiastical body.” Jones v. Wolf, 443 U.S. at 604.
Mr. Redwing is not free to convert his tort claims into an assault on the religious
doctrines, practices, and customs of the Roman Catholic Church. Several of the allegations
in Mr. Redwing’s amended complaint stray into the protected domain of religious liberty.
However, determining whether the ecclesiastical abstention doctrine requires the dismissal
of a complaint does not depend on whether the complaint contains some allegations that
would be improper for adjudication. Rather, it depends on whether the complaint contains
8
The Arizona Court of Appeals found no merit in a similar argument when it held that
The Board contends that, even if neutral principles of tort law applied, the court
would still have to examine the structure of the Church of the Nazarene to properly define
the duties of the various defendants. Maybe so. But the court can examine the structure of
a religious organization for such a purpose. A court may examine religious documents so
long as it is done in purely secular terms. Wolf, 443 U.S. at 604, 99 S. Ct. 3020. Any inquiry
into the structure of the religious organization would not be undertaken to resolve any
internal organizational dispute or the appropriateness of the conduct of the parties in relation
to their religious beliefs or obligations. Inquiry into the organizational structure would be
to factually determine the roles the parties played . . . .
Rashedi v. General Bd. of Church of Nazarene, 54 P.3d 349, 354-55 (Ariz. Ct. App. 2002).
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claims that Tennessee’s courts may properly adjudicate. If the complaint contains one or
more of these claims, then Tennessee’s civil courts are not entirely without subject matter
jurisdiction over this case.
We find that Mr. Redwing’s amended complaint contains claims over which
Tennessee’s civil courts plainly have subject matter jurisdiction. Mr. Redwing asserts that
the Diocese was aware or should have been aware that Fr. Guthrie presented a danger to
children and, nevertheless, placed him in a position where it was foreseeable that he would
sexually abuse a child, as he allegedly did Mr. Redwing, on church property. The Diocese
denies the existence of any religious basis for enabling sexual predators.9 Accordingly, based
on the record before us, it appears that Mr. Redwing will be able to pursue his negligent
hiring, supervision, and retention claims without asking the trial court to resolve any religious
disputes or to rely on religious doctrine. In other words, Mr. Redwing’s claims can be
pursued based upon breach of a secular duty by the Diocese without requiring the court to
resolve disputes over religious questions.
F.
We decline to embrace the distinction drawn by the Court of Appeals between Mr.
Redwing’s negligent hiring and retention claims and his negligent supervision claim.
Professors Lupu and Tuttle have correctly observed that “[t]he torts of negligent hiring,
supervision, and retention all involve essentially the same questions: did the defendant have
notice of the wrongdoer’s propensity to commit sexual misconduct, authority to prevent the
harm, and some duty of care to those who were harmed?” Ira C. Lupu & Robert W. Tuttle,
Sexual Misconduct and Ecclesiastical Immunity, 2004 B.Y.U. L. Rev. 1789, 1856 n.266
(2004) (“Lupu & Tuttle, 2004 B.Y.U. L. Rev.”). When “[s]een in that light, hiring and
retention are simply points along a continuum of opportunities for a principal to exercise
control over its agents[, and] . . . [i]t is not clear . . . why that distinction should matter.”
Lupu & Tuttle, 2004 B.Y.U. L. Rev. at 1856 n.266.
Applying a “secular standard to secular conduct that is tortious is not prohibited by
the Constitution.” Moses v. Diocese of Colo., 863 P.2d at 320. Accordingly, subjecting a
religious institution to liability based on its knowledge of the sexual predilections of its
clergy does not require interference with the institution’s beliefs. As Professor Hamilton has
explained:
9
Mr. Redwing does not dispute the Diocese’s assertion that church doctrine neither permits nor
encourages the placement of priests, known or suspected to be pedophiles, in positions where they can prey
on children. Should issues regarding church doctrine arise in the course of the proceeding, the trial court
would be required to defer to the religious institution for the answer.
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[I]t is both logical and sensible to pose the legal question as
whether the person being considered or retained is appropriate
for a job involving access to children, period. The secular
courts need not look at the church’s beliefs in order to take
evidence of the organization’s actions solely relating to children,
just as it need not investigate beliefs when it weighs evidence
involving a bounced check or a breach of contract. The church,
of course, can also place religious restrictions on candidates and
use religious principles in choosing any particular person for
ministry. The question here is not qualifications for ministry per
se, but rather employment for a position relating to children.
Marci A. Hamilton, The Waterloo for the So-Called Church Autonomy Theory: Widespread
Clergy Abuse and Institutional Cover-Up, 29 Cardozo L. Rev. 225, 242 (2007). The
Supreme Court of Mississippi has also noted:
We are satisfied that the cloak of religion, which does not shield
religious institutions from civil responsibility for fraud or breach
of contract, surely cannot serve to shield such institutions from
civil responsibility for more abhorrent conduct such as sexual
molestation of a child. Nor should it shield those who fail in
their duty to protect children from it.
Roman Catholic Diocese of Jackson v. Morrison, 2003-IA-00743-SCT (¶ 74), 905 So. 2d at
1237.
G.
The Court of Appeals failed to address whether Tennessee’s civil courts have subject
matter jurisdiction over Mr. Redwing’s breach of a fiduciary duty claim. We will address
this issue because it was argued in briefing before the trial court, the Court of Appeals, and
this Court. We have concluded that the ecclesiastical abstention doctrine does not impose
an absolute bar on claims for breach of fiduciary duty10 against religious institutions.
10
Recently, we held that a fiduciary relationship “arises when one person reposes special trust and
confidence in another person and that other person—the fiduciary—undertakes to assume responsibility for
the affairs of the other party.” Overstreet v. TRW Commercial Steering Div., 256 S.W.3d 626, 641-42 (Tenn.
2008). From this relationship arises a fiduciary duty “to act for and to give advice for the benefit of the other
person on matters within the scope of the relationship.” Overstreet v. TRW Commercial Steering Div., 256
S.W.3d at 642.
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Among the majority of courts that have permitted clerical sexual abuse claims against
religious institutions to proceed, several courts have allowed breach of fiduciary claims to
proceed, but only when the proof of the fiduciary relationship is not predicated solely on
religious duties or religious authority. See, e.g., Petrell v. Shaw, 902 N.E.2d at 406-07. For
example, the Supreme Court of Mississippi has stated that “a priest may not be held to be in
a fiduciary relationship merely based upon his status as a priest.” Mabus v. St. James
Episcopal Church, 2003-CA-00123-SCT (¶ 28), 884 So. 2d 747, 760 (Miss. 2004).
This limitation on claims based on breach of fiduciary duty arises from the
constitutional concerns that
the religious status of persons and the religious character of
institutions should not give rise to fiduciary duties as a matter of
law. In applying the law of fiduciary duty, courts should take
great care to avoid the imposition, by juries and others, of
liability for breaches of duties that are distinctly religious.
Lupu & Tuttle, 2004 B.Y.U. L. Rev. at 1797. While courts have, with some regularity, found
fiduciary relationships to exist on other grounds between ministers and parishioners, “rarely
has a court found such a fiduciary relationship between . . . a Diocese . . . and a parishioner.
Such a fiduciary relationship will likely exist only where there is a unique relationship
between the Diocese and the individual, or where the Diocese assumes some duties toward
the parishioner.” W. Cole Durham & Robert Smith, 2 Religious Organizations and the Law
§ 11:43 (2011).
A religious institution’s fiduciary obligations cannot be predicated on a religious duty
and cannot arise solely from the relationship between the institution and its members. Thus,
breach of fiduciary obligation claims against religious institutions remain quite rare.
However, the status of a defendant as a religious institution does not, by itself, preclude the
existence of a fiduciary relationship and the possibility of a breach of fiduciary duty claim.
Accordingly, we find that Tennessee’s civil courts may exercise jurisdiction over a breach
of fiduciary duty claim against a religious institution, as long as the fiduciary relationship is
not based on a religious duty or is not inextricably tied to a religious duty.
III.
The second issue in this case involves the decision of the majority of the Court of
Appeals that the trial court erred by failing to find that all of Mr. Redwing’s claims were
time-barred. The parties’ dispute does not involve a disagreement over when the underlying
tortious conduct occurred or when Mr. Redwing became eighteen years old. Rather, the
parties’ dispute centers on the application of three doctrines – the discovery rule, fraudulent
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concealment, and equitable estoppel – to the facts of this case. Based on the present record,
we have concluded that the dismissal of Mr. Redwing’s claims on statute of limitations
grounds was premature.
A.
The Diocese chose a Tenn. R. Civ. P. 12.02(6) motion as its vehicle for seeking
dismissal of Mr. Redwing’s complaint based on the statute of limitations.11 A Tenn. R. Civ.
P. 12.02(6) motion tests only the legal sufficiency of the plaintiff’s complaint, not the
strength of the plaintiff’s proof. Highwoods Props., Inc. v. City of Memphis, 297 S.W.3d
695, 700 (Tenn. 2009). Thus, courts ruling on a Tenn. R. Civ. P. 12.02(6) motion “‘must
construe the complaint liberally, presuming all factual allegations to be true and giving the
plaintiff the benefit of all reasonable inferences.’” Webb v. Nashville Area Habitat for
Humanity, Inc., 346 S.W.3d 422, 426 (Tenn. 2011) (quoting Tigg v. Pirelli Tire Corp., 232
S.W.3d 28, 31-32 (Tenn. 2007)). The determination of whether a suit should be dismissed
based on the statute of limitations presents a question of law which we review de novo with
no presumption of correctness. Fahrner v. SW Mfg., Inc., 48 S.W.3d 141, 144 (Tenn. 2001).
B.
Statutes of limitations promote fairness and justice. Pero’s Steak & Spaghetti House
v. Lee, 90 S.W.3d 614, 621 (Tenn. 2002). They are shields, not swords, Lawman v. Barnett,
180 Tenn. 546, 565, 177 S.W.2d 121, 128 (1944), and they reflect “‘a societal choice that
actions must be brought within a certain time period.’” Parrish v. Marquis, 172 S.W.3d 526,
532 (Tenn. 2005) (quoting Palmer Dev. Corp. v. Gordon, 1999 ME 22, ¶ 11, 723 A.2d 881,
884). They are based on the presumption that persons with the legal capacity to litigate will
not delay bringing suit on a meritorious claim beyond a reasonable time. Hackworth v.
Ralston Purina Co., 214 Tenn. 506, 510, 381 S.W.2d 292, 294 (1964); see also
Riddlesbarger v. Hartford Ins. Co., 74 U.S. 386, 390 (1869).
We have frequently pointed out that statutes of limitations (1) promote stability in
personal and business relationships, see Potts v. Celotex Corp., 796 S.W.2d 678, 684 (Tenn.
1990) (quoting Teeters v. Currey, 518 S.W.2d 512, 515 (Tenn. 1974)), (2) give notice to
defendants of potential lawsuits, Tigg v. Pirelli Tire Corp., 232 S.W.3d 28, 33 (Tenn. 2007),
(3) prevent undue delay in filing lawsuits, Leach v. Taylor, 124 S.W.3d 87, 90 (Tenn. 2004)
(quoting Quality Auto Parts Co. v. Bluff City Buick Co., 876 S.W.2d 818, 820 (Tenn. 1994));
Weber v. Moses, 938 S.W.2d 387, 393 (Tenn. 1996), (4) “avoid the uncertainties and burdens
11
A Tenn. R. Civ. P. 12.02(6) motion is an appropriate way to seek to invoke the statute of limitations
as grounds for dismissing a complaint. See Hawk v. Chattanooga Orthopaedic Grp., P.C., 45 S.W.3d 24,
28 (Tenn. Ct. App. 2000); 1 Pivnick § 11:3, at 857-58.
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inherent in pursuing and defending stale claims,” John Kohl & Co. v. Dearborn & Ewing,
977 S.W.2d 528, 533 (Tenn. 1998); Wyatt v. A-Best, Co., 910 S.W.2d 851, 855 (Tenn. 1995),
and (5) “ensure that evidence is preserved and facts are not obscured by the lapse of time or
the defective memory or death of a witness,” Pero’s Steak & Spaghetti House v. Lee, 90
S.W.3d at 621; Applewhite v. Memphis State Univ., 495 S.W.2d 190, 195 (Tenn. 1973)
(quoting Chase Sec. Corp. v. Donaldson, 325 U.S. 304, 314 (1945)). Accordingly, the courts
construe exceptions to statutes of limitations carefully to assure that they are not extended
beyond their plain meaning. See Abels ex rel. Hunt v. Genie Indus., Inc., 202 S.W.3d 99, 102
(Tenn. 2006) (quoting Owen v. Summers, 97 S.W.3d 114, 123 (Tenn. Ct. App. 2001)); see
also Cada v. Baxter Healthcare Corp., 920 F.2d 446, 453 (7th Cir. 1990).
A defense predicated on the statute of limitations triggers the consideration of three
components – the length of the limitations period, the accrual of the cause of action, and the
applicability of any relevant tolling doctrines. All of these elements are inter-related and,
therefore, should not be considered in isolation. Carli McNeill, Note, Seeing the Forest: A
Holistic View of the RICO Statute of Limitations, 85 Notre Dame L. Rev. 1231, 1231 (2010).
Arriving at a fair and just application of these inter-related elements in a particular case can
be challenging. As Judge Posner has noted, “the law concerning statutes of limitations fairly
bristles with subtle, intricate, often misunderstood issues.” Wolin v. Smith Barney Inc., 83
F.3d 847, 849 (7th Cir. 1996), abrogated on other grounds by Klehr v. A.O. Smith Corp., 521
U.S. 179, 194-95 (1997).
C.
The length of the limitations period is perhaps the most straightforward of the three
elements. Statutes of limitations are predominantly “creatures of the legislative branch of
government.” Carney v. Smith, 222 Tenn. 472, 477, 437 S.W.2d 246, 248 (1969).
Accordingly, subject only to limitations in the state and federal constitutions,12 the General
Assembly customarily defines limitations periods by statute. See generally McDaniel v.
Mulvihill, 196 Tenn. 41, 48, 263 S.W.2d 759, 762 (1953); Graves v. Grady’s Inc., 906
S.W.2d 463, 466 (Tenn. Ct. App. 1995).
The choice of the correct statute of limitations is made by considering the “‘gravamen
of the complaint.’” Whaley v. Perkins, 197 S.W.3d 665, 670 (Tenn. 2006) (quoting Gunter
v. Lab. Corp. of Am., 121 S.W.3d 636, 638 (Tenn. 2003)). In common parlance, this rather
12
See Morris v. Gross, 572 S.W.2d 902, 906-07 (Tenn. 1978) (invalidating an abbreviation of the
limitations period for already pending medical malpractice claims on due process grounds).
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elliptical phrase13 refers to the “substantial point,” the “real purpose,” or the “object” of the
complaint. Estate of French v. Stratford House, 333 S.W.3d 546, 557 (Tenn. 2011) (quoting
Black’s Law Dictionary 770 (9th ed. 2009)) (“substantial point”); Bland v. Smith, 197 Tenn.
683, 686, 277 S.W.2d 377, 379 (1953) (“real purpose”); Bodne v. Austin, 156 Tenn. 353, 360,
2 S.W.2d 100, 101 (1928) (“object”), overruled on other grounds by Teeters v. Currey, 518
S.W.2d 512, 517 (Tenn. 1974). It does not involve the “designation” or “form” of the action.
Pera v. Kroger Co., 674 S.W.2d 715, 719 (Tenn. 1984) (“designation”); Callaway v.
McMillian, 58 Tenn. (11 Heisk.) 557, 559 (1872) (“form”). Determining the “gravamen of
the complaint” is a question of law. Gunter v. Lab. Corp. of Am., 121 S.W.3d at 638.
D.
The concept of accrual relates to the date on which the applicable statute of limitations
begins to run. Columbian Mut. Life Ins. Co. v. Martin, 175 Tenn. 517, 526, 136 S.W.2d 52,
56 (1940); see also McSpadden v. Parkenson, 10 Tenn. App. 11, 18 (1928); 22 Steven W.
Feldman, Tennessee Practice: Contract Law and Practice § 12:80, at 601 (2006). The
traditional accrual rule was that a cause of action accrues and the applicable statute of
limitations begins to run “when the plaintiff has a cause of action and the right to sue.”
Armistead v. Clarksville-Montgomery Cnty. Sch. Sys., 222 Tenn. 486, 490, 437 S.W.2d 527,
528-29 (1969). The statute of limitations began to run even though “the person entitled to
an action . . . [had] no knowledge of his right to sue, or the facts out of which this right
arises.” 2 H.G. Wood, A Treatise on the Limitation of Actions § 276c(1), at 1411 (4th rev.
ed 1916) (“Wood”). Accordingly, under the traditional accrual rule, the cause of action
accrued in personal injury cases “immediately upon the infliction or occurrence of [the]
injury.” Teeters v. Currey, 518 S.W.2d at 515-16; Bodne v. Austin, 156 Tenn. at 370-71, 2
S.W.2d at 105.
The traditional accrual rule had another significant attribute. Once the statute of
limitations began to run, it did not cease for any intervening disability, Lawrence v.
Thornhill, 1 Tenn. Cas. (Shannon) 388, 390 (1875); Jones v. Preston, 40 Tenn. (3 Head) 161,
162 (1859), or for any other subsequent event not contemplated by the limitations statute
itself. 1 Wood § 6, at 12.
As time passed, there was a growing awareness that the policies furthered by statutes
of limitations should give way when the interests of justice would be served by permitting
plaintiffs to pursue their legitimate claims. See Burnett v. N.Y. Cent. R.R., 380 U.S. 424, 428
(1965). In 1950, the Harvard Law Review suggested an exception to the traditional rule “in
those situations where the plaintiff is generally unlikely to learn of the harm before the
13
One authority has characterized the phrase as “infelicitously redundant.” Bryan A. Garner, A
Dictionary of Modern Legal Usage 391 (2d ed. 1995).
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remedy expires.” Developments in the Law – Statutes of Limitations, 63 Harv. L. Rev. 1177,
1203 (1950). In the intervening years, courts and legislatures began to recognize exceptions
to the traditional accrual rules that “take the sting out of a statute of limitations for equitable
reasons.” Adam Bain & Ugo Colella, Interpreting Federal Statutes of Limitations, 37
Creighton L. Rev. 493, 502 (2004) (“Bain & Colella”).
Harvard Law Review’s suggestion rapidly gained acceptance as many state courts and
legislatures adopted what is now known as the “discovery rule.” In 1974, this Court
recognized and adopted the discovery rule in response to the “harsh and oppressive” results
of the traditional accrual rule in circumstances in which the injured party was unaware of the
injury. Teeters v. Currey, 518 S.W.2d at 516. The Court, expressly limiting its decision to
surgical malpractice cases, held that “the cause of action accrues and the statute of limitations
commences to run when the patient discovers, or in the exercise of reasonable care and
diligence for his own health and welfare, should have discovered the resulting injury.”
Teeters v. Currey, 518 S.W.2d at 517. In his concurring opinion, Justice Harbison noted that
“[i]n the vast majority of personal injury cases . . . the date of the injury and the date of
discovery are simultaneous.” Teeters v. Currey, 518 S.W.2d at 518 (Harbison, J.,
concurring); see also Cada v. Baxter Healthcare Corp., 920 F.2d at 450.
The Court later expanded the application of the discovery rule to many other injuries
to persons or property. See McCroskey v. Bryant Air Conditioning Co., 524 S.W.2d 487, 491
(Tenn. 1975) (holding that “in tort actions . . . the cause of action accrues . . . when the injury
occurs or is discovered, or when in the exercise of reasonable care and diligence, it should
have been discovered.”); see also Justin N. Joy, Comment, Civil Procedure – Pero’s Steak
& Spaghetti House v. Lee: Tennessee Declines to Extend the Discovery Rule to Claims of
Converted Negotiable Instruments, 34 U. Mem. L. Rev. 475, 487 & n.63 (2004) (cataloging
the causes of action to which the discovery rule applies). The Court has also declined to
apply the discovery rule to certain types of claims. Pero’s Steak & Spaghetti House v. Lee,
90 S.W.3d at 624 (declining to apply the discovery rule in cases involving the conversion of
negotiable instruments).
Following our decision in Teeters v. Currey, this Court refined the discovery rule to
make clear that it included not only the discovery of the injury but also the discovery of the
source of the injury. Sherrill v. Souder, 325 S.W.3d 584, 595 (Tenn. 2010) (holding that the
cause of action accrues when the plaintiff discovers both the injury and the “identity of the
person or persons whose wrongful conduct caused the injury”); John Kohl & Co. v. Dearborn
& Ewing, 977 S.W.2d 528, 532 (Tenn. 1998) (holding that the cause of action accrues when
the plaintiff knows or should know that it sustained an injury “as a result of wrongful . . .
conduct by the defendant”); Wyatt v. A-Best, Co., 910 S.W.2d 851, 855 (Tenn. 1995)
(holding that “a prerequisite to the running of the statute of limitations is [the] plaintiff’s
reasonable knowledge of the injury, its cause and origin”); Foster v. Harris, 633 S.W.2d 304,
-23-
305 (Tenn. 1982) (holding that “no judicial remedy [is] available to [a] plaintiff until he [or
she] discover[s], or reasonably should have discovered, (1) the occasion, the manner and
means by which a breach of duty occurred that produced his [or her] injury; and (2) the
identity of the defendant who breached the duty.”).
The Court also made it clear that the discovery rule does not delay the accrual of a
cause of action and the commencement of the statute of limitations until the plaintiff knows
the full extent of the damages, B & B Enters. of Wilson Cnty., LLC v. City of Lebanon, 318
S.W.3d 839, 849 (Tenn. 2010); Weber v. Moses, 938 S.W.2d 387, 393 (Tenn. 1996) (holding
that the plaintiff cannot delay filing suit “until all injurious effects or consequences of the
actionable wrong are fully known”), or until the plaintiff knows the specific type of legal
claim it has, John Kohl & Co. v. Dearborn & Ewing, 977 S.W.2d at 533; see also Stanbury
v. Bacardi, 953 S.W.2d 671, 677 (Tenn. 1997); Wyatt v. A-Best, Co., 910 S.W.2d at 855.
The discovery rule is not intended to permit a plaintiff to delay filing suit until the discovery
of all the facts that affect the merits of his or her claim. Mills v. Booth, 344 S.W.3d 922, 929
(Tenn. Ct. App. 2010) (quoting Burk v. RHA/Sullivan, Inc., 220 S.W.3d 896, 902 (Tenn. Ct.
App. 2006)).
Under the current discovery rule, a cause of action accrues and the statute of
limitations begins to run not only when the plaintiff has actual knowledge of a claim, but also
when the plaintiff has actual knowledge of “facts sufficient to put a reasonable person on
notice that he [or she] has suffered an injury as a result of wrongful conduct.” Carvell v.
Bottoms, 900 S.W.2d 23, 29 (Tenn. 1995) (quoting Roe v. Jefferson, 875 S.W.2d 653, 657
(Tenn. 1994)). This latter circumstance is variously referred to as “constructive notice” 14 or
“inquiry notice.”15 Quoting the Iowa Supreme Court, we have explained that inquiry notice
“charges a plaintiff with knowledge of those facts that a reasonable investigation would have
disclosed. . . . [O]nce a plaintiff gains information sufficient to alert a reasonable person of
the need to investigate ‘the injury,’ the limitation period begins to run.” Sherrill v. Souder,
325 S.W.3d at 593 n.7 (quoting Rathje v. Mercy Hosp., 745 N.W.2d 443, 461 (Iowa 2008));
see also Diamond v. Davis, 680 A.2d 364, 372 (D.C. 1996) (defining inquiry notice as the
“notice which a plaintiff would have possessed after due investigation”).
14
John Kohl & Co. v. Dearborn & Ewing, 977 S.W.2d at 532; Lufkin v. Conner, 338 S.W.3d 499, 503
(Tenn. Ct. App. 2010).
15
Sherrill v. Souder, 325 S.W.3d at 594-95; Potts v. Celotex Corp., 796 S.W.2d 678, 680-81 (Tenn.
1990) (quoting Hoffman v. Hosp. Affiliates, Inc., 652 S.W.2d 341, 344 (Tenn. 1983)); Doe v. Catholic Bishop
for Diocese of Memphis, 306 S.W.3d at 718.
-24-
E.
In addition to the relaxation of the traditional accrual rules, both the Tennessee
General Assembly and the courts have recognized various tolling doctrines that suspend or
extend the running of the limitations period. For example, the General Assembly has enacted
statutes tolling the statute of limitations (1) for minors and for adults who lack the capacity
to sue,16 (2) for civil claims by plaintiffs who have been enjoined from filing suit,17 (3) for
claims against personal representatives of a decedent’s estate,18 and (4) for claims against
out-of-state defendants who are not otherwise amenable to service of process.19 More
recently, the General Assembly has provided for tolling the statute of limitations during times
of disaster.20
This Court has likewise recognized several tolling doctrines. In civil proceedings, we
have recognized and applied the doctrines of equitable estoppel and fraudulent concealment
to toll the running of the statute of limitations. In criminal proceedings, we have recognized
the doctrine of “due process” tolling. Workman v. State, 41 S.W.3d 100, 103 (Tenn. 2001);
Seals v. State, 23 S.W.3d 272, 279 (Tenn. 2000); Burford v. State, 845 S.W.2d 204, 209
(Tenn. 1992). However, unlike other state courts and the federal courts, we have declined
to recognize the doctrine of equitable tolling in civil cases. See Fahrner v. SW Mfg., Inc., 48
S.W.3d at 145 n.2; Norton v. Everhart, 895 S.W.2d 317, 321 (Tenn. 1995). We have also
declined to recognize the doctrine of cross-jurisdictional tolling. See Maestas v. Sofamore
Danek Grp., Inc., 33 S.W.3d 805, 808 (Tenn. 2000).
E QUITABLE E STOPPEL
The doctrine of equitable estoppel arises from the equitable maxim that no person may
take advantage of his or her own wrong.21 In the context of a defense predicated on a statute
of limitations, the doctrine of equitable estoppel tolls the running of the statute of limitations
16
Tenn. Code Ann. § 28-1-106 (Supp. 2011).
17
Tenn. Code Ann. § 28-1-109 (2000).
18
Tenn. Code Ann. § 28-1-110 (2000).
19
Tenn. Code Ann. § 28-1-111 (2000); Arrowood v. McMinn Cnty., 173 Tenn. 562, 565-68, 121
S.W.2d 566, 567-69 (1938).
20
Tenn. Code Ann. § 28-1-116 (Supp. 2011).
21
See Richardson v. Snipes, 46 Tenn. App. 494, 515, 330 S.W.2d 381, 390 (1959) (quoting 1 Henry
R. Gibson, Gibson’s Suits in Chancery § 60, at 74 (5th ed. 1955)) (“One of the maxims of equity is, ‘No one
can take advantage of his own wrong.’”); see also 18 Tenn. Jur. Limitation of Actions § 42, at 124-25 (2005).
-25-
when the defendant has misled the plaintiff into failing to file suit within the statutory
limitations period. Fahrner v. SW Mfg., Inc., 48 S.W.3d at 145; Ingram v. Earthman, 993
S.W.2d 611, 633 (Tenn. Ct. App. 1998). When the doctrine of equitable estoppel is
applicable, it prevents a defendant from asserting what could be an otherwise valid statute
of limitations defense. Hardcastle v. Harris, 170 S.W.3d 67, 84 (Tenn. Ct. App. 2004).
The party invoking the doctrine of equitable estoppel has the burden of proof.
Hardcastle v. Harris, 170 S.W.3d at 85. Thus, whenever a defendant has made out a prima
facie statute of limitations defense, the plaintiff must demonstrate that the defendant induced
him or her to put off filing suit by identifying specific promises, inducements, suggestions,
representations, assurances, or other similar conduct by the defendant that the defendant
knew, or reasonably should have known, would induce the plaintiff to delay filing suit.
Fahrner v. SW Mfg., Inc., 48 S.W.3d at 145; Hardcastle v. Harris, 170 S.W.3d at 85. The
plaintiff “must also demonstrate that [his or her] delay in filing suit was not attributable to
[his or her] own lack of diligence.” Hardcastle v. Harris, 170 S.W.3d at 85.
The doctrine of equitable estoppel applies only when the defendant engages in
misconduct. B & B Enters. of Wilson Cnty., LLC v. City of Lebanon, 318 S.W.3d at 849
(quoting Norton v. Everhart, 895 S.W.2d at 321). Examples of circumstances which have
prompted the courts to invoke the doctrine of equitable estoppel to prevent a defendant from
asserting a statute of limitations defense include: (1) when a defendant promises not to assert
a statute of limitations defense,22 (2) when a defendant promises to pay or otherwise satisfy
the plaintiff’s claim without requiring the plaintiff to file suit,23 and (3) when a defendant
promises to settle a claim without litigation following the conclusion of another proceeding
between the defendant and a third party.24
In the context of defenses predicated on a statute of limitations, the doctrine of
equitable estoppel always involves allegations that the defendant misled the plaintiff.
Fahrner v. SW Mfg., Inc., 48 S.W.3d at 146. The focus of an equitable estoppel inquiry “is
on the defendant’s conduct and the reasonableness of the plaintiff’s reliance on that
conduct.” Hardcastle v. Harris, 170 S.W.3d at 85; see also Fahrner v. SW Mfg., Inc., 48
S.W.3d at 146. Determining whether to invoke the doctrine of equitable estoppel to counter
a statute of limitations defense requires the courts to examine the facts and circumstances of
the case to determine whether the defendant’s conduct is sufficiently unfair or misleading to
22
American Mut. Liab. Ins. Co. v. Baxter, 210 Tenn. 242, 247-48, 357 S.W.2d 825, 827 (1962).
23
Brick Church Transmission, Inc. v. Southern Pilot Ins. Co., 140 S.W.3d 324, 335 (Tenn. Ct. App.
2003) (quoting Fairway Vill. Condo. Ass’n, Inc. v. Connecticut Mut. Life Ins. Co., 934 S.W.2d 342, 346
(Tenn. Ct. App. 1996)).
24
Hardcastle v. Harris, 170 S.W.3d at 85-86.
-26-
outweigh the public policy favoring the enforcement of statutes of limitations. Hardcastle
v. Harris, 170 S.W.3d at 85.
Plaintiffs asserting equitable estoppel must have acted diligently in pursuing their
claims both before and after the defendant induced them to refrain from filing suit. The
statute of limitations is tolled for the period during which the defendant misled the plaintiff.
Fahrner v. SW Mfg., Inc., 48 S.W.3d at 146; Lusk v. Consolidated Aluminum Corp., 655
S.W.2d 917, 920-21 (Tenn. 1983). The plaintiff must demonstrate that suit was timely filed
after the plaintiff knew or, in the exercise of reasonable diligence, should have known that
the conduct giving rise to the equitable estoppel claim had ceased to be operational. See
Ingram v. Earthman, 993 S.W.2d at 633. At the point when the plaintiff knows or should
know that the defendant has misled him or her, the original statute of limitations begins to
run anew, and the plaintiff must file his or her claim within the statutory limitations period.
Fahrner v. SW Mfg., Inc., 48 S.W.3d at 146.25
F RAUDULENT C ONCEALMENT
For over a century now, Tennessee’s courts have also held that the doctrine of
fraudulent concealment will toll the running of a statute of limitations. In re Estate of Davis,
308 S.W.3d 832, 841 (Tenn. 2010); Woodfolk v. Marley, 98 Tenn. 467, 471, 40 S.W. 479,
480 (1897); Porter’s Lessee v. Cocke, 7 Tenn. (1 Peck) 29, 41 (1823), overruled on other
grounds by Love v. Harper, 23 Tenn. (4 Hum.) 113, 117 (1843). This doctrine is one of the
oldest exceptions to the statute of limitations. See Bailey v. Glover, 88 U.S. 342, 348-49
(1874). While the doctrine of fraudulent concealment shares many of the attributes of the
doctrine of equitable estoppel, Tennessee’s courts, like most courts, have recognized it as a
free-standing doctrine. See Bain & Colella, 37 Creighton L. Rev. at 506 (noting that “[m]ost
courts do not explicitly classify fraudulent concealment as either equitable estoppel or
equitable tolling, but rather treat it sui generis”).
As it currently exists in Tennessee, the doctrine of fraudulent concealment is aligned
with the discovery rule.26 Under the fraudulent concealment doctrine, the statute of
25
On this point, Fahrner v. SW Mfg., Inc. appears to reverse Ingram v. Earthman, 993 S.W.2d at 633
and Fairway Vill. Condo. Ass’n v. Connecticut Mut. Life Ins. Co., 934 S.W.2d 342, 346 (Tenn. Ct. App.
1996) in which the Court of Appeals adopted the majority rule that if the basis for estoppel ends before the
statute of limitations has run, the plaintiff must file suit within the original limitations period if reasonable
time remains within which to file suit. Likewise, if the basis for estoppel ends after the statute of limitations
has run, the plaintiff must file suit within a reasonable time. Because the parties in this case have not joined
issue on this point, we need not reconsider it in the present case.
26
We have explained that “[i]n a discovery rule case, the plaintiff may claim that the defendant
(continued...)
-27-
limitations is tolled when “the defendant has taken steps to prevent the plaintiff from
discovering he [or she] was injured.” Fahrner v. SW Mfg., Inc., 48 S.W.3d at 146. While
other decisions couch the fraudulent concealment doctrine in terms of the defendant taking
affirmative steps “to conceal the cause of action,”27 the reference to “cause of action” in this
context is synonymous with the plaintiff’s injury.28
Until today, the cases applying the fraudulent concealment doctrine have involved
circumstances in which the defendant has fraudulently concealed the existence of the
plaintiff’s injury and the plaintiff was not otherwise aware that he or she had been injured.
However, circumstances can also arise in which the plaintiff is aware that he or she had been
injured but does not know or have reason to know the identity of the person or persons who
caused the injury. In this circumstance, the discovery rule would apply in precisely the same
way that it would apply in circumstances in which the plaintiff did not know or have reason
to know that he or she had been injured. See Sherrill v. Souder, 325 S.W.3d at 595 (holding
that the cause of action accrues when the plaintiff discovers both the injury and the “identity
of the person or persons whose wrongful conduct caused the injury”); Wyatt v. A-Best Co.,
910 S.W.2d at 855 (holding that a prerequisite to the running of a statute of limitations is the
plaintiff’s “reasonable knowledge of the injury, its cause and origin”).
Professor John Dawson has observed that “there is abundant authority for the
proposition that direct misrepresentation or other active steps to conceal the identity of the
wrongdoer do justify delay and [the suspension of] the statute.” John P. Dawson, Fraudulent
Concealment and Statutes of Limitation, 31 Mich. L. Rev. 875, 914 (1933). Accordingly, we
have concluded that the doctrine of fraudulent concealment applies not only to circumstances
in which the defendant purposefully engages in conduct intended to conceal the plaintiff’s
injury from the plaintiff but also to circumstances in which the defendant engages in conduct
intended to conceal the identity of the person or persons who caused the plaintiff’s injury
from the plaintiff.
A claim of fraudulent concealment to toll the running of a statute of limitations
contains four elements. The plaintiff invoking the fraudulent concealment doctrine must
26
(...continued)
intentionally prevented him from discovering his injury. Where that claim is proved true, the doctrine of
‘fraudulent concealment’ applies.” Fahrner v. SW Mfg., Inc., 48 S.W.3d at 145.
27
See, e.g., Shadrick v. Coker, 963 S.W.2d 726, 735 (Tenn. 1998).
28
See Albert v. Sherman, 167 Tenn. 133, 138, 67 S.W.2d 140, 141 (1934) (noting that “it is the
original injury which is the cause of action, or which gives rise to the cause of action, and that the damage
sustained is not the cause of action. The statute begins to run when the cause of action accrues.”), overruled
on other grounds by Teeters v. Currey, 518 S.W.2d at 514-17.
-28-
allege and prove: (1) that the defendant affirmatively concealed the plaintiff’s injury or the
identity of the wrongdoer or failed to disclose material facts regarding the injury or the
wrongdoer despite a duty to do so;29 (2) that the plaintiff could not have discovered the injury
or the identity of the wrongdoer despite reasonable care and diligence;30 (3) that the
defendant knew that the plaintiff had been injured and the identity of the wrongdoer;31 and
(4) that the defendant concealed material information from the plaintiff by “‘withholding
information or making use of some device to mislead’ the plaintiff in order to exclude
suspicion or prevent inquiry.” 32
Plaintiffs asserting the doctrine of fraudulent concealment to toll the running of a
statute of limitations must demonstrate that they exercised reasonable care and diligence in
pursuing their claim. See Vance v. Schulder, 547 S.W.2d 927, 930 (Tenn. 1977); Ray v.
Scheibert, 224 Tenn. 99, 104, 450 S.W.2d 578, 580-81 (1969). The statute of limitations is
tolled until the plaintiff discovers or, in the exercise of reasonable diligence, should have
discovered the defendant’s fraudulent concealment or sufficient facts to put the plaintiff on
actual or inquiry notice of his or her claim. See Fahrner v. SW Mfg., Inc., 48 S.W.3d at 145.
At the point when the plaintiff discovers or should have discovered the defendant’s
fraudulent concealment or sufficient facts to put the plaintiff on actual or inquiry notice of
his or her claim, the original statute of limitations begins to run anew, and the plaintiff must
file his or her claim within the statutory limitations period.
IV.
Because of the procedural posture of this case, the record is far from sufficient to
permit the courts to make a conclusive determination regarding whether Mr. Redwing’s
claims against the Diocese are time-barred. While the record reflects that the Diocese made
out a prima facie defense based on the statute of limitations, the question before us is whether
the factual allegations in Mr. Redwing’s amended complaint regarding the statute of
limitations issue are sufficient to survive a Tenn. R. Civ. P. 12.02(6) motion to dismiss.
29
See Pero’s Steak & Spaghetti House v. Lee, 90 S.W.3d at 625; Shadrick v. Coker, 963 S.W.2d at
735.
30
See Pero’s Steak & Spaghetti House v. Lee, 90 S.W.3d at 625; Shadrick v. Coker, 963 S.W.2d at
735.
31
See Pero’s Steak & Spaghetti House v. Lee, 90 S.W.3d at 625; Shadrick v. Coker, 963 S.W.2d at
735.
32
Shadrick v. Coker, 963 S.W.2d at 735 (quoting Benton v. Snyder, 825 S.W.2d 409, 414 (Tenn.
1992)).
-29-
Turning to the three elements to be considered in the context of a statute of limitations
defense,33 there is no question in this case regarding the applicable statute of limitations or
the length of the limitations period. Even though Mr. Redwing’s complaint is less than
specific about when the alleged sexual abuse occurred,34 there is no dispute that Mr. Redwing
was a minor at the time. It is also undisputed that Mr. Redwing’s eighteenth birthday
occurred on August 18, 1978 and that, in accordance with Tenn. Code Ann. § 28-1-106, he
had one year35 from that date to file suit against Fr. Guthrie and any other person or entity
that caused the alleged abuse. There is likewise no dispute that Mr. Redwing did not file suit
against the Diocese until August 15, 2008 – almost twenty-nine years after the statute of
limitations would have expired.
These undisputed facts are sufficient, in and of themselves, to establish the Diocese’s
statute of limitations defense. Thus, the burden shifts to Mr. Redwing to demonstrate that
the allegations in his amended complaint are sufficient to articulate at least a colorable basis
for concluding that the statute of limitations has not run on his claims against the Diocese.
Taking the allegations in Mr. Redwing’s amended complaint in their best light, Mr. Redwing
counters the Diocese’s statute of limitations defense by asserting that the Diocese
fraudulently concealed its knowledge of Fr. Guthrie’s history and propensity for sexually
abusing minors and misled him and his parents into believing that it was unaware of Fr.
Guthrie’s conduct. As a result of the Diocese’s conduct, Mr. Redwing argues that he should
not be deemed to have discovered his claims against the Diocese. He also argues that
because of its conduct, the Diocese should be equitably estopped to assert a statute of
limitations defense.
The majority of the Court of Appeals, citing C.S. v. Diocese of Nashville, No. M2007-
02076-COA-R3-CV, 2008 WL 4426891, at *3 (Tenn. Ct. App. Sept. 30, 2008), perm. app.
denied (Tenn. Mar. 16, 2009) and Doe v. Catholic Bishop for Diocese of Memphis, 306
S.W.3d at 731 n.17, found that Mr. Redwing was on inquiry notice because he “knew he was
abused, knew the identity of the abuser, and knew the abuser was an employee of the
employer.” Redwing v. Catholic Bishop for Diocese of Memphis, 2010 WL 2106222, at *7.
33
As discussed in Section III, the three elements that must be considered with regard to a statute of
limitations defense include (1) length of the limitations period, (2) the accrual of the plaintiff’s claim, and
(3) the applicability of tolling doctrines.
34
The complaint states that the alleged acts occurred between 1972 and 1974.
35
Tenn. Code Ann. § 28-3-104(a)(1) (2000) provides for a one-year statute of limitations for personal
injury actions.
-30-
We take no issue with this conclusion.36 However, we depart from the majority and agree
with Judge Kirby that dismissing Mr. Redwing’s complaint for failure to exercise reasonable
diligence in pursuing these claims was premature.
A.
We turn first to Mr. Redwing’s equitable estoppel claim. As we have already noted,
the essence of an equitable estoppel claim when it is used to defeat a statute of limitations
defense is that the defendant intentionally induced the plaintiff to delay filing suit within the
time required by the statute of limitations. Fahrner v. S.W. Mfg., Inc., 48 S.W.3d at 145.
Accordingly, the claim necessarily presupposes that the plaintiff was aware of his or her
claim but put off pursuing it because of the defendant’s promises, suggestions, or
inducements that filing suit would be unnecessary.
The factual allegations in Mr. Redwing’s amended complaint are inconsistent with an
equitable estoppel claim. Mr. Redwing repeatedly asserts in his amended complaint that he
was unaware that he had a claim against the Diocese because the Diocese “misled” him and
his family. If we take these assertions as true, as we must, Mr. Redwing did not know that
he had a claim against the Diocese until after the statute of limitations ran on his claim. This
lack of knowledge, while not inconsistent with a fraudulent concealment claim, undermines
his equitable estoppel claim because knowledge of a claim against the defendant prior to the
running of the statute of limitations is a necessary ingredient of an equitable estoppel claim.
36
The Court of Appeals’ conclusion is in accord with the approaches adopted by courts in other
jurisdictions in addressing statute of limitations issues in similar cases. See e.g., Cevenini v. Archbishop of
Washington, 707 A.2d 768, 773 (D.C. 1998) (concluding that sexual abuse victims were on inquiry notice
of claims against the diocese where they knew the alleged abuser was a priest, that the priest was a
subordinate representative of the diocese, and abuse occurred on church premises); Mark K. v. Roman
Catholic Archbishop, 79 Cal. Rptr. 2d 73, 79 (Cal. Ct. App. 1998) (determining that knowledge that one was
abused by a priest and the priest was an employee of the diocese was sufficient to put an alleged sexual abuse
victim on inquiry notice of claims against the diocese); Doe v. Archdiocese of Washington, 689 A.2d 634,
644 (Md. Ct. Spec. App. 1997) (finding that an alleged victim of sexual abuse by a priest is on inquiry notice
of potential claims against the diocese based upon knowing that the abuser is a priest); Zumpano v. Quinn,
849 N.E.2d 926, 930 (N.Y. 2006) (concluding that sexual abuse victims were on inquiry notice of potential
claims against the Diocese because they “knew the identity of their abusers and that the abusers were
employed by the Diocese”); Doe v. Archdiocese of Cincinnati, 109 Ohio St. 3d 491, 2006-Ohio-2625, 849
N.E.2d 268, at ¶¶ 28-34, (concluding that knowledge that one was abused by a priest and that the priest was
employed by the diocese puts an alleged sexual abuse victim on inquiry notice of claims against the diocese);
Colosimo v. Roman Catholic Bishop of Salt Lake City, 2007 UT 25, ¶ 50, 156 P.3d 806, 819 (Utah 2007)
(concluding that parochial school students were on inquiry notice with regard to potential claims against the
church diocese, archdiocese, religious order, and parochial school of the priest who abused them based upon
their knowledge that they were abused by a priest and the priest’s employment relationship with the various
institutional defendants).
-31-
B.
The majority of the Court of Appeals discounted the allegations in Mr. Redwing’s
complaint supporting his fraudulent concealment claim because they were conclusory and
insufficient to show that Mr. Redwing had exercised reasonable diligence in undertaking to
obtain information regarding his claims against the Diocese. Mr. Redwing’s amended
complaint contains numerous allegations against the Roman Catholic Church in general and
the Diocese in particular. With regard to the Roman Catholic Church, the complaint states
that
It is the practice of the Roman Catholic Church, through its
cardinals, bishops, priests and other officials and agents, to
conceal instances of child sexual abuse and complaints by
victims. [The Roman Catholic Church] zealously maintains the
secrecy of the horrifying truth of rampant child sexual abuse in
The Church, by among other things:
• Failing to disclose complaints to law enforcement
officials, parishoners and the public;
• Maintaining secret archives and files of evidence of sex
abuse, accessible only to the bishops;
• Instructing Church officials in destruction of
incriminating documents and spoliation of evidence
regarding sexual abuse by clergy;
• Transferring sex offending clergy to The Church
facilities in other locations where their pasts would not
be known to parishoners, and the abusers would have a
“fresh start” with a new group of vulnerable children;
• Threatening and coercing victims and their families to
withdraw complaints and retract allegations of sexual
abuse;
• Paying “hush money” to victims and their families, in
exchange for promises of non-disclosure and
confidentiality.
With specific regard to the Diocese, Mr. Redwing’s complaint alleges that
At the time that Mr. Redwing was abused by Father
Guthrie, Mr. Redwing and/or his family were unaware of the
Diocese’s knowledge of Father Guthrie’s sexual interest in
young boys. In fact, Mr. Redwing and/or his family were misled
-32-
by the Diocese with regard to the Diocese’s knowledge of
Father Guthrie’s history and propensity for committing sexual
abuse upon minors.
After finding out about Father Guthrie’s abuse of minors,
the Diocese actively took steps to protect Father Guthrie,
conceal the Diocese’s own wrongdoing in supervising Father
Guthrie, and prevent Norman Redwing and other victims of
Father Guthrie from filing civil lawsuits.
These allegations differentiate Mr. Redwing’s complaint from the complaints
apparently filed in C.S. v. Diocese of Nashville and Doe v. Catholic Bishop for Diocese of
Memphis. Mr. Redwing’s complaint contains allegations that both the Roman Catholic
Church and the Diocese knew, but covered up, the clergy’s sexual abuse of minors and that
the Diocese was aware that Fr. Guthrie sexually abused minors and misled Mr. Redwing and
his family about its knowledge and involvement. Considered in the light most favorable to
Mr. Redwing, the allegation that the Diocese misled Mr. Redwing and his family could be
construed to mean that at some point, Mr. Redwing or his family asked the Diocese about its
knowledge of Fr. Guthrie’s conduct and that the Diocese’s response misled them. The Court
of Appeals has correctly recognized that this circumstance could amount to fraudulent
concealment. Doe v. Catholic Bishop for Diocese of Memphis, 306 S.W.3d at 730 (stating
that “[h]ad the Diocese been asked about [the priest’s] prior offenses in 1987, we cannot
know whether the Diocese would have been forthcoming in response to such inquiries. As
in Cevenini,37 had [the plaintiff] requested such information and been refused, ‘our decision
might be different.’”).
For the purposes of both the discovery rule and the doctrine of fraudulent
concealment, the pivotal issue is whether Mr. Redwing would have discovered the Diocese’s
allegedly wrongful acts had he exercised reasonable care and diligence. See Sherrill v.
Souder, 325 S.W.3d at 595; In re Estate of Davis, 308 S.W.3d at 842; Teeters v. Currey, 518
S.W.2d at 516-17. We must, at least at this juncture, take the allegations in Mr. Redwing’s
complaint as true and draw all reasonable inferences in Mr. Redwing’s favor.
37
In its rejection of a sexual abuse victim’s fraudulent concealment claim, the District of Columbia
Court of Appeals stated that “[h]ad appellants requested information about [the priest’s] background from
the Archdiocese and been refused access to it, our decision might be different. However, we are unwilling
to hold that a failure to disclose information that has not even been requested constitutes fraudulent
concealment.” Cevenini v. Archbishop of Washington, 707 A.2d at 774. The court also noted that “[m]erely
talking to priests and nuns . . . can hardly be deemed a sufficient effort” and that “[d]ue diligence would have
required [the plaintiff] to seek out an Archdiocesan official.” Cevenini v. Archbishop of Washington, 707
A.2d at 774.
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Mr. Redwing is arguing, in essence, that the Diocese actively concealed its
involvement and that he had no reason to suspect that the Diocese was misleading him.
Accordingly, he insists that his inquiry of the Diocese itself was sufficient to constitute
reasonable diligence and that he was not required to file suit first and then engage in formal
discovery.
The issue of whether Mr. Redwing exercised reasonable diligence to discover his
claims against the Diocese is a question of fact. See Sherrill v. Souder, 325 S.W.3d at 596
(quoting Shadrick v. Coker, 963 S.W.2d at 737). At this stage of the proceeding, the facts
are limited to the allegations in Mr. Redwing’s amended complaint. The allegations
involving the Diocese’s active concealment of its knowledge of Fr. Guthrie’s activities and
its efforts to mislead Mr. Redwing could, if proven, provide a basis for a reasonable fact-
finder to conclude that Mr. Redwing, lacking any basis for suspecting that the Diocese would
deceive him, acted with reasonable diligence and, therefore, that he should not be held to
have known that the Diocese’s conduct caused him injury. They could also provide a basis
for a reasonable fact-finder to conclude that the Diocese fraudulently concealed its
knowledge of and responsibility for Fr. Guthrie’s conduct, thereby tolling the statute of
limitations.
Ultimately, the decisions regarding the Diocese’s alleged fraudulent concealment of
its knowledge of and responsibility for Fr. Guthrie’s conduct and Mr. Redwing’s diligence
in pursuing his claim against the Diocese will require further development of the facts
through discovery. The current record contains no information regarding (1) when and how
Mr. Redwing or his parents asked the Diocese about its knowledge of Fr. Guthrie’s conduct,
(2) the manner in which the Diocese misled Mr. Redwing or his parents, (3) the steps Mr.
Redwing took to pursue claims against Fr. Guthrie prior to Fr. Guthrie’s death, (4) when and
under what circumstances Mr. Redwing learned or should have learned about the public
accounts of the charges that the Roman Catholic Church was engaged in a systematic cover-
up of its knowledge of and responsibility for the acts of child abuse committed by its priests,
and (5) when and under what circumstances Mr. Redwing learned or should have learned that
the Diocese was engaging in the same conduct allegedly engaged in by the Roman Catholic
Church.
Because the Diocese has made out a prima facie statute of limitations defense, the
burden is on Mr. Redwing to demonstrate that his claims against the Diocese should not be
time-barred. Our denial of the Diocese’s motion to dismiss does not prevent the Diocese
from continuing to assert its statute of limitations defense or to again pursue this defense by
motion or otherwise once all the relevant facts are known. However, at this stage of the
proceeding, we find that the Court of Appeals erred by dismissing Mr. Redwing’s complaint
based on the running of the statute of limitations.
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V.
For the reasons discussed above, we conclude that the Court of Appeals correctly
determined that the trial court has subject matter jurisdiction over Mr. Redwing’s negligent
supervision claims against the Diocese but that the Court of Appeals erred by holding that
the trial court lacked subject matter jurisdiction over Mr. Redwing’s negligent hiring and
retention claims. Additionally, we find that the trial court has subject matter jurisdiction over
Mr. Redwing’s breach of fiduciary duty claim but caution that Mr. Redwing may not proceed
with this claim if it is based solely on duties that are either religious or inextricably
intertwined with religious duties. We also conclude that the Court of Appeals erred by
finding that the statute of limitations barred Mr. Redwing’s negligent hiring, retention, and
supervision claims against the Diocese. We remand this case to the trial court for further
proceedings consistent with this opinion. We also tax the costs of this appeal to the Diocese
of Memphis for which execution, if necessary, may issue.
______________________________
WILLIAM C. KOCH, JR., JUSTICE
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