Barre v. Hoffman

• Decision Date: 25 June 2009
• Docket Number: No. 07-1305.,07-1305.
• Citation: 2009 Ark. 373,326 S.W.3d 415
• Parties: Paul BARRE, Appellant, v. Charles "Chick" HOFFMAN; Boy Scouts Of America Incorporated; Boy Scouts of America, Quapaw Council; Holy Souls Catholic Church d/b/a Holy Souls School and the Roman Catholic Church, Diocese of Little Rock; James Peter Sartain, in his official capacity as agent for the Roman Catholic Diocese of Little Rock; the Hartford Insurance Company; United States Fidelity and Guaranty Company; John Doe Insurance Company # 1; John Doe Insurance Company # 2; and John Doe Insurance Company # 3, Appellees.
• Court: Arkansas Supreme Court

326 S.W.3d 415

2009 Ark. 373

Paul BARRE, Appellant,

v.Charles "Chick" HOFFMAN; Boy Scouts Of America Incorporated; Boy Scouts of America, Quapaw Council; Holy Souls Catholic Church d/b/a Holy Souls School and the Roman Catholic Church, Diocese of Little Rock; James Peter Sartain, in his official capacity as agent for the Roman Catholic Diocese of Little Rock; the Hartford Insurance Company; United States Fidelity and Guaranty Company; John Doe Insurance Company # 1; John Doe Insurance Company # 2; and John Doe Insurance Company # 3, Appellees.

No. 07-1305.

Supreme Court of Arkansas.

June 25, 2009.

Welch and Kitchens, PLLC, by: Morgan "Chip" Welch and Ashley Hudson, North Little Rock; and Brian G. Brooks, Attorney at Law, PLLC, by: Brian G. Brooks, Greenbrier, for appellant.

Williams & Anderson, PLC, by: Philip E. Kaplan, Little Rock, for Charles "Chick" Hoffman.

Mitchell, Williams, Selig, Gates & Woodyard, PLLC, by: Stuart Miller, Little Rock, for Boys Scouts of America.

Kilpatrick, Williams, Smith & Meeks, LLP, by: Joseph E. Kilpatrick, Jr., Little Rock, for Boy Scouts of America, Quapaw Council.

Barber, McCaskill, Jones & Hale, PA, by: Robert L. "Skip" Henry, III, Little Rock, for Holy Souls Catholic Church d/b/a Holy Souls School and Roman Catholic Church, Diocese of Little Rock.

Quattlebaum, Grooms, Tull & Burrow, PLLC, by: E.B. Chiles, IV, Little Rock, for Hartford Accident & Indemnity Company.

Anderson, Murphy & Hopkins, LLP, by: Overton S. Anderson, Little Rock, for United States Fidelity and Guaranty Company.

JIM HANNAH, Chief Justice.

*1 Paul Barre appeals the order of summary judgment entered against him in Pulaski County Circuit Court. Barre sued Charles "Chick" Hoffman; Boy Scouts ofAmerica Inc.; Boy Scouts of America Quapaw Council; Holy Souls Catholic Church, d/b/a Holy Souls School and the Roman Catholic Church, Diocese of Little Rock; James Peter Sartain, in his *2 official capacity as agent for the Roman Catholic Diocese of Little Rock; The Hartford Insurance Company; and United States Fidelity and Guaranty Company (collectively referred to as defendants), alleging damages resulting from sexual abuse he suffered approximately thirty years ago when he was eleven and twelve years old. The circuit court found that there were no issues of material fact regarding fraudulent concealment of Barre's action against the defendants, and the court further found that repressed-memory syndrome does not toll the statute of limitations under Arkansas Code Annotated section 16-56-116 (Supp.2003). The circuit court also denied Barre's motion to permit additional discovery. We affirm the decision of the circuit court.

Barre raises three points on appeal, alleging that the circuit court erred (1) in failing to find that the statute of limitations was tolled by defendants' fraudulent concealment, (2) in failing to find that repressed-memory syndrome was a disability that tolled the statute of limitations, and (3) in failing to find that additional discovery was required before summary judgment could be entered. This case was certified to this court by the court of appeals as a case involving issues of first impression, issues of substantial public interest, and significant issues needing clarification of the law. Our jurisdiction is pursuant to Arkansas Supreme Court Rule 1-2(b)(1), (4) and (5)(2009).

At issue is the circuit court's grant of summary judgment. Summary judgment may only be granted when there are no genuine issues of material fact to be litigated. K.C. Props. of N.W. Ark. Inc. v. Lowell Inv. Partners, 373 Ark. 14, 280 S.W.3d 1 (2008). The moving *3 party is then entitled to judgment as a matter of law. Id. Once the moving party has established a prima facie entitlement to summary judgment, the opposing party must meet proof with proof and demonstrate the existence of a material issue of fact. Id. On appellate review, this court determines if summary judgment was appropriate based on whether the evidentiary items presented by the moving party in support of the motion leave a material fact unanswered. Id. This court views the evidence in a light most favorable to the party against whom the motion was filed, resolving all doubts and inferences against the moving party. Id. Our review focuses not only on the pleadings, but also on the affidavits and other documents filed by the parties. Id.

Barre asserts that he was sexually abused by Hoffman, his scoutmaster, ¹ on three occasions while at week-long scout camps during the summer of 1976 and the summer of 1977. He further asserts that while he was aware of the abuse as it occurred, he lost or repressed his memory of it, and that he only recovered memories of the abuse on July 4, 2003.² Barre recountsthat his therapist had requested that he try to recall his earliest memories of depression and suicidal ideations. Barre states that during this process, he *4 recalled being sexually abused by Hoffman in Hoffman's tent, in his own tent, and in the showers at the camp.

On March 20, 2005, Barre filed suit for damages resulting from the sexual abuse and asserted that he suffered from repressed-memory syndrome. The defendants answered, asserting the complaint was barred by the statute of limitations. The depositions of Barre and Hoffman were taken. Additional written discovery was undertaken. Motions for summary judgment were filed in 2005 and later amended. Judgment was entered in favor of all defendants on October 11, 2007.

Statute of Limitations

The parties agreed that the limitation period set out in Arkansas Code Annotated section 16-56-116 (person under disabilities at time of accrual of action) applies in this case.³ Section 16-56-116 provides in relevant part that where a person suffers from a disability, that person may bring suit within three years after the disability is removed. Ark.Code Ann. § 16-56-116(a). Further, no person may avail himself or herself of the disability unless the disability existed at the time that the cause of action accrued. Ark.Code Ann. § 16-56-116(b). Barre alleges that he was suffering from a disability caused by repressed-memory syndrome at the time he attained the age of majority, and that he did not have to sue until *5 three years after he recalled the memories on July 4, 2003.

When the running of the statute of limitations is raised as a defense, the defendant has the burden of affirmatively pleading this defense; moreover, once it is clear from the face of the complaint that the action is barred by the applicable limitations period, the burden shifts to the plaintiff to prove by a preponderance of the evidence that the statute of limitations is tolled. Reed v. Guard, 374 Ark. 1, 3, 285 S.W.3d 662, 664 (2008). The alleged abuse was suffered in 1976 and 1977. Thus, it is clear from the face of the complaint that the action is barred by the statute of limitations. The defendants raised the statute of limitations as a bar to suit. Barre thus bore the burden of proving by a preponderance of the evidence that the statute was tolled.

Fraudulent Concealment

Barre first alleges that the statute of limitations was barred by fraudulent concealment. Fraudulent concealment is not a cause of action; rather, it is a response raised against the defense of statute of limitations. See Jones v. Central Ark. Radiation Therapy Inst., Inc., 270 Ark. 988, 607 S.W.2d 334 (1980). Fraudulent concealment tolls the statute of limitations when the persons alleged to have committed the fraud "have committed a positive act of fraud, something so furtively planned and secretly executed as to keep the plaintiff's cause of action concealed, or perpetrated in a way that it conceals itself." Riddle v. Udouj, 371 Ark. 452, 461, 267 S.W.3d 586, 593 (2007). However, even if fraudulent concealment is found, the appellant must additionally prove that the fraud would not have been detected by *6 the exercise of reasonablediligence. Delanno, Inc. v. Peace, 366 Ark. 542, 547, 237 S.W.3d 81, 85 (2006).

The evidence in this case is that Quapaw Council Executive Director Jimmy Cole witnessed sexual abuse of boys by Hoffman, that he confronted Hoffman, and that he reported Hoffman to his superiors at Quapaw District, as well as to the Troop Institutional Representative, Father James Correnti. Cole served with Quapaw District from 1974 until 1976.⁴ In 1977, at least two parents came to Father Correnti with rumors. According to Hoffman, prior to his resignation in July 1977, he met with Father Max Gavin and was told the abuse had to stop. A few weeks after meeting with Gavin, Hoffman met with Father Correnti, who told Hoffman he needed to resign. Barre notes that the parish minutes show Hoffman's resignation but make no mention of abuse. Finally, at a weekly meeting of the Boy Scout Troop in July 1977, Hoffman announced his resignation and stated he was leaving to assist his father in the family business. No mention of the abuse was made to the boys and scout leaders present at the Troop meeting when Hoffman resigned. Neither Barre nor his father was present at this Troop meeting. Barre offered no evidence to show that the defendants knew that he was a victim of Hoffman's abuse.

Barre offered the above-recited evidence to show that the defendants fraudulently *7 concealed his cause of action. According to Barre, this evidence constitutes the required "positive act of fraud, something so furtively planned and secretly executed as to keep the plaintiff's cause of action concealed, or perpetrated in a way that it conceals itself." See Martin v. Arthur, 339 Ark. 149, 154-55, 3 S.W.3d 684, 687 (1999). This court's discussion in Hodges v. Huckabee, 338 Ark. 454, 464, 995 S.W.2d 341, 348 (1999), is helpful:

Appellant's suspicions about motive do not give rise to a genuine issue of material fact. A mere suspicion in the mind of the party against whom summary judgment is sought will not create a genuine issue of fact, nor does it suffice as good cause for further discovery. BWH,

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