Helen L. Hyde
v.
The Roman Catholic Bishop of Providence. Jeffrey Thomas
v.
The 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 ...