Hyde v. Roman Catholic Bishop of Providence

         Providence County Superior Court No. 08-5223, 08-4096 Netti C. Vogel Associate Justice

          For Plaintiffs: Bartholomew Dalton, Pro Hac Vice Lauren E. Jones, Esq. Paul S. Cantor, Esq.

          For Defendant: Melissa E. Darigan, Esq. Howard A. Merten, Esq. Eugene G. Bernardo II

          Present: Suttell, C.J., Goldberg, Flaherty, Robinson, and Indeglia, JJ.

          OPINION

          Francis X. Flaherty, Associate Justice

         The plaintiffs, Helen L. Hyde and Jeffrey Thomas, brought suit against the Roman Catholic Bishop of Providence, seeking damages arising from their alleged sexual abuse at the hands of Father Brendan Smyth more than four decades ago. The Superior Court granted summary judgment in favor of the defendant. The plaintiffs appealed, arguing that the trial justice erred when she decided that the statute of limitations barred their claims because, they argue, their inability to recall the abuse tolled the statute of limitations until such time as they became aware of their claims against the institutional, nonperpetrator defendant. Moreover, the plaintiffs argue that the trial justice erred when she denied their request to seek discovery on the alternate tolling theory that the defendant fraudulently concealed their causes of action from them. For the reasons set forth below, we affirm the judgment of the Superior Court.

         Facts and Travel

         The plaintiffs filed complaints in Providence County Superior Court against the Roman Catholic Bishop of Providence (defendant), alleging that Father Brendan Smyth sexually abused them on numerous occasions, beginning in 1967 until approximately 1970. The plaintiffs alleged that the acts of abuse visited upon them all occurred while Smyth was under defendant's supervision. At the time of the alleged abuse, Smyth was a visiting priest, counselor, and teacher at Our Lady of Mercy School and Church in East Greenwich. In these positions, Father Smyth had unsupervised interactions with young parishioners and schoolchildren; it was during those encounters that he allegedly took advantage of and sexually abused several children. After he left Rhode Island, Father Smyth returned to his native Ireland, where he was later convicted of serial child molestation. Around 1997, Smyth died in prison.

         According to Hyde, Smyth began abusing her in 1967, when she was six years old and a student at Our Lady of Mercy School. Hyde maintained that Smyth sexually abused her in a classroom, in the schoolyard, in church, in her home, and in the woods outside her house.

         Hyde was not the only victim of Smyth's claimed sexual abuse to come forward. Thomas alleged in his complaint that, soon after Smyth began to abuse Hyde, he also raped and molested him in the church's rectory and in Hyde's backyard.

         In their respective complaints, plaintiffs claim that defendant and his predecessors knew that Smyth was a pedophile by the late 1940s, but that they nonetheless continued to allow him to serve as a priest under their supervision. They maintain that defendant not only knew of Smyth's pedophilia, but also that Smyth's level of sexual abuse caused him to be sent away for treatment before he was eventually allowed to return to Our Lady of Mercy. Relying on their claim that defendant knew Smyth was a pedophile, plaintiffs filed their complaints, in which they alleged numerous counts of negligence, negligent supervision, vicarious liability, fraud, intentional nondisclosure, and intentional failure to supervise. The plaintiffs also asserted that each of them had repressed recollection of the crimes perpetrated against them and that they did not recover their memories of the abuse until within three years of the filing of the lawsuit.

         In response, defendant filed motions to dismiss the complaints. First, defendant argued that, because the statute extending the time for childhood victims of sexual abuse who suffered from repressed memory applied only in the case of perpetrator defendants, the action was time-barred. Second, he argued that plaintiffs had failed to allege sufficient facts that would support tolling of the statute under the "unsound mind" provision found at G.L. 1956 § 9-1-19. The plaintiffs opposed the motions to dismiss, arguing that repressed memory, in and of itself, was a possible tolling mechanism under the "unsound mind" provision of § 9-1-19, that an evidentiary hearing on repressed memory, pursuant to this Court's decision in Kelly v. Marcantonio, 678 A.2d 873 (R.I. 1996), was in order, and that plaintiffs' fraud claims were timely because plaintiffs could not have discovered defendant's fraudulent conduct until they remembered the underlying abuse.

         At the hearing on the motions to dismiss, defendant argued that this Court has never held that repressed and subsequently recovered memories, standing alone, without any other indicia, could constitute an unsound mind. The defendant also argued that § 9-1-51 did not apply to nonperpetrator defendants and that there was no requirement for an evidentiary hearing in this case.^[1] Much of defendant's argument focused on his position that, for the "unsound mind" tolling provision of § 9-1-19 to apply, plaintiffs were required to show some inability to manage their day-to-day affairs, and that, with respect to these particular plaintiffs, Hyde and Thomas had experienced successful careers as a lawyer and as a businessman, respectively.

         The trial justice denied defendant's motion, without prejudice, pending an evidentiary hearing to "receive scientific and other data to assess whether repressed recollection ha[d] been established * * *." The trial justice agreed that Kelly had definitively held that suits against nonperpetrator defendants could not be tolled under § 9-1-51. However, the hearing justice also said that it was her opinion that this Court had yet to hold definitively that a trial court "cannot permit repressed memory to toll the [s]tatute of [l]imitations unless the [c]ourt also finds that the [p]laintiff was unable to conduct his or her day-to-day activities." The trial justice directed that an evidentiary hearing be held to determine if plaintiffs could demonstrate having repressed memories that would qualify as "unsound mind" under § 9-1-19. The motion to dismiss having been denied, defendant subsequently filed answers to the complaints.

         More than a year later, defendant filed a motion for entry of a scheduling order, attaching a proposed schedule.^[2] The plaintiffs' counsel objected to the proposed order, not on the grounds that it was inadequate for discovery on plaintiffs' repressed-memory claims, but because plaintiffs' counsel asserted the right to conduct discovery on an intentional concealment tolling theory pursuant to § 9-1-20.^[3] This, defendant argued, would frustrate the intent of the court's order as to an evidentiary hearing, which was limited to the question of whether repressed memory could constitute "unsound mind" so as to toll the statute of limitations under § 9-1-19. The defendant also argued that plaintiffs had not alleged sufficient facts to support such a theory, and, further, that they had waived the right to present a fraudulent concealment tolling argument.

         The plaintiffs responded with a scheduling order of their own; theirs included a provision for discovery based on fraudulent concealment. They argued that they intended to introduce evidence of defendant's fraudulent concealment at the evidentiary hearing on the repressed-memory issue, claiming that, because they had pled fraud and intentional nondisclosure in their complaints, they should be allowed to conduct discovery on those issues. At the hearing on the motions, the hearing justice remarked that "not once did the plaintiff mention fraudulent concealment" during the earlier hearing on defendant's motion to dismiss, and that, "if there was a legal issue or a factual issue that would have provided a defense to the [s]tatute of [l]imitations claim, it was incumbent on plaintiff to raise it at that time, and the plaintiff did not." She determined that, although she would not allow full discovery on this issue, plaintiffs could, in the alternative, file a motion to reargue the motion to dismiss and raise the issue of fraudulent concealment that way. She further directed that each plaintiff file an affidavit on the fraudulent concealment issue and that she might thereafter permit discovery.

         The plaintiffs acted on the hearing justice's suggestion and moved to reargue their opposition to defendant's motions to dismiss-this time including their fraudulent concealment claim. The defendant filed an objection and a hearing was held. In deciding the motion, the trial justice began by observing that, to demonstrate fraudulent concealment for the purpose of tolling the statute of limitations, a "plaintiff must show * * * that the defendant made an actual misrepresentation of fact, " and "that in making such misrepresentation, the defendant fraudulently concealed the existence of plaintiffs' causes of action." The defendant argued that plaintiffs had actual knowledge of the facts they contended were the foundation of their causes of action, but that fraudulent concealment "requires an action by a defendant to a plaintiff that conceals the cause of action itself, " i.e., a type of "affirmative misrepresentation of fact related to their injury." The defendant asserted that plaintiffs' "[a]ctual knowledge negates fraudulent concealment." The plaintiffs responded that there could not be actual knowledge by a minor child who repressed the memory of the injury before reaching the age of majority. The plaintiffs argued that, among other things, a former bishop of Providence had "state[d] under the penalty of perjury that his job was to * * * conceal the information of abuse * * * [and] sanctify the priests * * * [and] return them to minister, " and that this constituted "an actual admission by defendants of fraudulent concealment immediately post-abuse."

         The trial justice said that the Supreme Court "ha[d] been very, very strict about fraudulent concealment as it relate[d] to cases such as this." Regarding plaintiff Hyde, defendant argued that she would have to show that defendant "misled her into believing that the assault did not occur, [and] that Brendon [sic] Smyth did not commit the assault or that she did not suffer any injuries as a result of the assault." The hearing justice said that none of Hyde's allegations had constituted fraudulent concealment.^[4]

         When asked by the trial justice what actual misrepresentation defendant made to plaintiff, plaintiff Hyde indicated that, with additional discovery, perhaps such a fact might be uncovered. She also suggested that if evidence were to be produced that would show that her mother went to defendant and reported plaintiff's abuse by Smyth, and if defendant told her mother that her suspicions were unfounded or if he threatened to excommunicate her, those facts would support their theory. The trial justice did not agree; she ruled that she would not allow plaintiffs to combine the claims of fraudulent concealment and repressed recollection so as to extend the statute of limitations, and that "[t]here came a point in time where the fact that Father Jerry [sic], Brenda[n] Smyth, was a pedophile, [and] had abused children in Rhode Island, became disclosed, " and "that fact was no longer concealed."

         At a later continuation of the hearing, defendant argued that documents that plaintiff Hyde had produced, including her own journal entries from 2005, indicated that she "was actively investigating a cause of action against Brendon [sic] Smyth as early as June of 2005." With respect to Thomas, defendant argued that "Mr. Thomas never allege[d] any misrepresentation by anyone at any time on any matter."

         The trial justice found that there was no evidence of actual misrepresentations made by defendant to plaintiffs regarding their civil claims that could have tolled the applicable statute of limitations. Specifically, she said, "[t]here [wa]sn't an iota of evidence * * * that between the ages of [eighteen] and [twenty-one] there were any misrepresentations made to Ms. Hyde, [or] to Mr. Thomas." She further found that any misrepresentations defendant may have made to plaintiff Hyde's mother were only applicable to plaintiff's mother until plaintiff reached the age of eighteen, because her mother's ability to bring a lawsuit on her behalf came to an end at that time.

         She further concluded that plaintiffs had "attempted to circumvent the well-established case law, that [§] 9-1-51 does not apply to non-perpetrator [d]efendants by drafting an argument under [§] 9-1-20." At the conclusion of the hearing, the trial justice denied plaintiffs' motion for limited discovery as to fraudulent concealment. In so doing, she said that she could "conceive of no set of facts that [p]laintiffs could develop through discovery that would permit them to defeat the motion to dismiss based upon the Doctrine of Fraudulent Concealment."

         The Parties Stipulate as to the Need for an Evidentiary Hearing

         During the course of these hearings, the trial justice discussed her understanding of Rhode ...