Doe v. Popravak

• Decision Date: 09 June 2017
• Docket Number: No. 115,282,115,282
• Parties: John F.M. DOE, Appellant, v. Fr. Christopher POPRAVAK, Capuchin Province of Mid-America, Inc., Province of St. Augustine of the Capuchin Order, David Nestler, The Roman Catholic Archdiocese of Kansas City in Kansas, and Archbishop Joseph F. Naumann, Appellees.
• Court: Kansas Court of Appeals

55 Kan.App.2d 1

421 P.3d 760

John F.M. DOE, Appellant,

v.Fr. Christopher POPRAVAK, Capuchin Province of Mid-America, Inc., Province of St. Augustine of the Capuchin Order, David Nestler, The Roman Catholic Archdiocese of Kansas City in Kansas, and Archbishop Joseph F. Naumann, Appellees.

No. 115,282

Court of Appeals of Kansas.

Opinion filed June 9, 2017¹

Rebecca M. Randles, of Randles Mata, LLC, of Kansas City, Missouri, for appellant.

Mara H. Cohara and Chad E. Blomberg, of Lathrop & Gage LLP, of Kansas City, Missouri; Lisa A. Weixelman and Guillermo G. Zorogastua, of Polsinelli PC, of Kansas City, Missouri; and Karen L. Torline, Stephen J. Torline, and Michael T. Crabb, of Kuckelman Torline Kirkland & Lewis, of Overland Park, for appellees.

Before Leben, P.J., Powell and Schroeder, JJ.

Leben, J.:

The plaintiff in this case, who has filed under the pseudonym John F.M. Doe, says that he was abused in 1972—when he was 11 years old—by a Catholic priest. Four decades later, when Doe was 53, he filed a lawsuit seeking damages for the abuse. The district court dismissed Doe’s claims after it concluded that it was too late under Kansas law for him to pursue them. Doe has appealed to our court.

We will begin our overview of the issues of this case and this decision with the two different types of time limitations that prevent claims from being litigated. One is a statute of limitations.

Under these, there’s a time clock that starts running when an action is said to "accrue," meaning when the legal claim has fully come into existence, and any lawsuit must be filed within a time period set by the legislature. In Kansas, most torts cases, including ones for negligence, must be brought within 2 years, with the time clock normally starting to run when the injury occurs, which might be well after the act of negligence that caused the injury (say, when a negligently manufactured product doesn’t cause injury until many years later). See K.S.A. 60-513(b).

To give some certainty that claims for past acts will go away at some point, there’s a second type of time limit states often create for certain types of claims—known as a statute of repose. Under this type of statute, even if an action has not accrued (and even if the plaintiff has not yet been injured and doesn’t know, for example, that a product he or she has bought was negligently manufactured), there may still be some time limit based on when the defendant’s last action leading to the lawsuit took place. See McCann v. Hy-Vee, Inc., 663 F.3d 926, 930 (7th Cir. 2011) ; Black’s Law Dictionary 1637 (10th ed. 2014). This second type of limit—the statute of repose—is where the main problem with Doe’s suit lies.

Like most states, Kansas recognizes that a minor can’t file his or her own lawsuit, so a person like Doe who has been harmed while a child generally can file suit within 1 year after turning 18. See K.S.A. 60-515(a). But there’s also a statute of repose for such claims—"no such action shall be commenced ... more than eight years after the time of the [defendant’s] act giving rise to the cause of action." K.S.A. 60-515(a). In Doe’s case, the alleged abuse took place in 1972; under the statute of repose established by our legislature, he simply couldn’t pursue the claims 40 years later.

With that overview, we will move next to the factual information set out in Doe’s petition, which initiated the lawsuit. We’ll then discuss in more detail each of the legal issues he has presented in this appeal.

FACTUAL AND PROCEDURAL BACKGROUND

Because this case was dismissed at the pleading stage, we must accept as true the facts set out in Doe’s amended petition. That’s because on a motion to dismiss a plaintiff’s claims without proceeding further with the lawsuit, the court must accept the facts as set out in the petition. Platt v. Kansas State University, 305 Kan. 122, 126, 379 P.3d 362 (2016). The defendants have suggested that some of the allegations identifying specific defendants (Catholic Church entities and certain religious orders) may not be entirely accurate, but we will accept Doe’s allegations for the purposes of this appeal. (The inaccuracies the defendants suggest do not affect the legal questions about whether Doe can proceed with his lawsuit.)

Doe alleges he was sexually abused in 1972 by Father Finnian Meis, a priest then serving at The Church of the Good Shepherd in Shawnee, Kansas. At the time, Doe was 11 years old. Doe was referred to Meis for counseling following disciplinary issues at the local Catholic school. During these sessions, Meis would "lay[ ] on top of [Doe] and forc[e] his tongue down [Doe’s] throat in addition to other weird counseling exercises, including relieving anger with a foam pillow shaped like a bat."

Doe told his mother about Meis kissing him after the first session, and she contacted Meis. He reassured her that nothing inappropriate or outside the bounds of proper therapy had occurred but said he would no longer kiss the boy. Doe then resumed counseling with Meis, but Doe has no further recollection of anything that happened during the sessions. Meis allegedly told Doe not to tell anyone about the events occurring during counseling. Meis was removed from the priesthood in 1986 and died in 1997.

According to Doe, Meis had faced other allegations of abuse, including one before he was transferred to Good Shepherd Church. In 1971, Meis was posted at the St. Joseph Monastery in Hays, Kansas, and was a member of the Capuchin Order, a Catholic religious order of friars and priests. Meis served as the leader of a campus Catholic organization for a local college there. A student began seeing Meis for grief counseling

following the death of her father. She told a nun and Capuchin administrators that Meis had used "relaxation techniques" to sexually molest her during their counseling sessions. Shortly after that allegation, Meis was transferred to the Good Shepherd Church in 1972. Doe claims that the same student came forward again in 2003 and reported Meis’ misconduct to the Capuchin Review Board, including Capuchin administrators.

At least two other people alleged Meis had sexually abused them. In 2003, another parishioner from the Good Shepherd Church told the Archdiocese of Kansas City that Meis had abused him when he was a child during counseling, alleging that Meis had lain on top of him, French kissed him, and used certain "relaxation" techniques. A priest at the Archdiocese directed the parishioner to contact the Midwest Province of the Capuchin Order. According to Doe, that organization told the parishioner that it had received no other complaints about Meis. Another individual also reported abuse to the Archdiocese and the Capuchin Province, but he was told that unless three families were willing to come forward publicly about Meis, nothing could be done.

Doe says that he repressed all memories of the abuse until 2011. At that point, he contacted the Archdiocese of Kansas City and the Capuchin Order and told them about Meis’ conduct and abuse. Following a meeting with the Independent Review Board, the Archdiocese of Kansas City, through Archbishop Joseph Naumann, told Doe that it could not substantiate the credibility of his claims. That finding was forwarded to the Capuchin Province for Mid-America.

On April 1, 2014, Doe filed suit against Father Christopher Popravak, the Provincial Minister of the Capuchin Province of Mid-America; the Capuchin Province of Mid-America; the Province of St. Augustine of the Capuchin Order; Father David Nestler, the Provincial Minister of that Capuchin Order; the Archdiocese of Kansas City; and Archbishop Naumann, the Archbishop of the Archdiocese of Kansas City. Doe sued all of the defendants under several theories: (1) for child sexual abuse and/or battery based on the conduct of their employee, Meis; (2) for breach of fiduciary duty; (3) for fraud and conspiracy to commit fraud; (4) for negligence; and (5) for negligent supervision and retention of Meis. Doe also sued the Capuchin Order and its provincial minister for outrageous conduct.

The defendants asked the district court to dismiss the lawsuit, arguing, in part, that the entire action was time-barred because, under K.S.A. 60-515(a), Doe had to bring his claim within 8 years of the abuse in 1972. After conducting a hearing, the district court concluded that all of Doe’s claims were time-barred under K.S.A. 60-515(a). But the court noted that Doe had also alleged fraudulent concealment, a claim that can toll, or pause the clock on, the time limit to bring a lawsuit. The court held that for fraudulent concealment to operate as a tolling mechanism, the plaintiff must plead with particularity that the defendant committed specific acts that prevented the plaintiff from filing suit in a timely fashion. The court determined that Doe had made only general allegations that the defendants knew or had reason to know that Meis was sexually abusing children and was a danger and, therefore, Doe had not sufficiently pled fraudulent concealment to toll the time limit. Instead of dismissing the case at that point, the district court gave Doe the opportunity to amend his petition "to state with sufficient particularity those facts which support his contention that ‘fraudulent concealment’ prevented his filing of this lawsuit for some 42 years."

Doe then amended his petition, and the defendants filed additional motions to dismiss the suit. After a hearing, the district court dismissed the suit with prejudice, meaning Doe could not refile it. In its order, the court said that although the amended petition contained 102 new paragraphs, none of them alleged conduct by the defendants that prevented Doe from filing his suit within the 8-year time limit imposed by K.S.A. 60-515(a). The court also concluded that Doe had not established any facts that would establish fraudulent concealment to toll the time limit to bring suit, so all of his claims were barred.

Doe has appealed the...