Gibson v. Brewer

Decision Date19 August 1997
Docket NumberNo. 79291,79291
PartiesMichael GIBSON, Narron Gibson and Marianne Gibson, Appellants-Respondents, v. Father Michael BREWER, Respondent-Appellant, and Catholic Chancery--Diocese of Kansas City--St. Joseph, Respondent.
CourtMissouri Supreme Court

Sylvester James, Jr., Nancy E. Kinner, Brian C. Fries, Kansas City, for Appellants-Respondents.

James R. Wyrsch, Michael P. Joyce, Kansas City, for Respondent-Appellant.

James P. Tierney, William M. Stapleton, Brian J. Madden, Kansas City, for Respondent.

Carl H. Esbeck, Columbia, for amicus curiae.

Timothy Belz, St. Louis, for amicus curiae, Center for Law & Religious Freedom of the Christian Legal Society, etc.

BENTON, Chief Justice.

Michael Gibson and his parents Narron and Marianne Gibson appeal judgments of the circuit court dismissing several counts of their petition against Father Michael Brewer and all counts against The Catholic Diocese of Kansas City-St. Joseph. Brewer purports to cross-appeal the trial court's failure to dismiss the remaining counts.

The circuit court determined that there was no just reason to delay the appeals. Rule 74.01(b). After opinion by the Court of Appeals, Western District, this Court granted transfer and now affirms in part, reverses in part, dismisses all appeals by or against Brewer, and remands.


This case was decided on motions to dismiss, prior to answer and discovery. Therefore, the facts are assumed as averred in the petitions. See Johnson v. Kraft General Foods, 885 S.W.2d 334, 335 (Mo. banc 1994).

Father Brewer, a Catholic priest and an associate pastor, invited Michael Gibson and a friend to spend the night and watch movies in the church Rectory. Michael alleges that early in the morning, Brewer touched or fondled him in a sexual, offensive, and unwelcome manner.

Michael's parents, upon discovering the incident, reported it to the Diocese. Officials of the Diocese told them that "this happens to young men all the time" and that Michael "would get over it." Diocese employees urged them to meet with Brewer to resolve the situation. After hearing of similar incidents between Brewer and other young boys, the Gibsons "expressed their concerns to the Diocese." They were told that the incident with Michael was "an innocent pat on the butt" and that they should "forgive and forget" and get on with their lives. According to the Gibsons, the Diocese continued to ignore them until Brewer was eventually removed from the Diocese.

The Gibsons filed a petition for damages against both Brewer and the Diocese, alleging nine counts: battery, negligent hiring/ordination/retention, negligent failure to supervise negligent infliction of emotional distress, intentional infliction of emotional distress, breach of fiduciary duty, conspiracy, agency liability, and independent negligence of the Diocese. The trial court issued two judgments. One dismissed all counts against the Diocese for "failure to state a claim upon which relief can be granted and because such claims as alleged against said defendant infringe upon its rights provided by the First Amendment to the United States Constitution." The other judgment dismissed all counts against Brewer except battery, negligent infliction of emotional distress, and intentional infliction of emotional distress.

II. Counts Against Brewer

None of the parties question the authority of the trial court to certify its judgments as appealable under Rule 74.01(b). This Court sua sponte must determine its jurisdiction of these appeals. Boley v. Knowles, 905 S.W.2d 86, 88 (Mo. banc 1995). "A prerequisite to appellate review is that there be a final judgment." Id. citing § 512.020. If the trial court's judgments are not final, this Court lacks jurisdiction and the appeals must be dismissed. Committee for Educ. Equality v. State, 878 S.W.2d 446, 454 (Mo. banc 1994). An appealable judgment resolves all issues in a case, leaving nothing for future determination. Boley, 905 S.W.2d at 88.

Rule 74.01(b) provides an exception to this "finality rule" for cases with multiple claims. A trial court may enter judgment on less than all claims and certify that there is "no just reason for delay." Id. The designation by a trial court that its order is final and appealable is not conclusive. Klippel v. Watkins, 667 S.W.2d 28, 30 (Mo.App.1984). It is the content, substance, and effect of the order that determines finality and appealabilty. Erslon v. Cusumano, 691 S.W.2d 310, 312 (Mo.App.1985).

Although a circuit court may designate its judgment final as to particular claims, this designation is effective only when the order disposes of a distinct "judicial unit." Erslon, 691 S.W.2d at 312; See J. Lewin Bookbinding Co. v. Holliston Mills, 665 S.W.2d 375, 377 (Mo.App.1984); Lake v. Durham Life Ins. Co., 663 S.W.2d 322, 323-24 (Mo.App.1983). The required "judicial unit for an appeal" has a settled meaning: "the final judgment on a claim, and not a ruling on some of several issues arising out of the same transaction or occurrence which does not dispose of the claim." State ex rel. State Hwy. Comm'n v. Smith, 303 S.W.2d 120, 123 (Mo.1957). "An order dismissing some of several alternative counts, each stating only one legal theory to recover damages for the same wrong, is not considered an appealable judgment while the other counts remain pending because the counts are concerned with a single fact situation." Weir v. Brune, 364 Mo. 415, 262 S.W.2d 597, 600 (1953). It is "differing," "separate," "distinct" transactions or occurrences that permit a separately appealable judgment, not differing legal theories or issues presented for recovery on the same claim. Id.

True, this Court once stated that the court of appeals' decisions cited in the preceding paragraphs should no longer be followed. Speck v. Union Elec. Co., 731 S.W.2d 16, 20 n. 2 (Mo. banc 1987). However, this Court more recently called these cases "well-reasoned decisions." Committee for Educ. Equality v. State, 878 S.W.2d at 454. Footnote 2 in Speck is, in fact, the authority that should not be followed, because, the very year Speck was decided, this Court adopted Rule 74.01(b) and repealed Rule 81.06 (that Speck had applied)--with the result that Speck was "rethought," id., and the cases cited in this opinion are again good law.

Here the circuit court did not dismiss the Gibsons' counts for battery, negligent infliction of emotional distress, and intentional infliction of emotional distress against Brewer, which remain pending in the trial court. The other counts purportedly certified as final and appealable--breach of fiduciary duty and conspiracy--expressly incorporate the same facts as the counts pending in the circuit court. The pending counts clearly arise from the same set of facts, and the same transactions and occurrences, as the counts supposedly appealed. Accordingly, the trial court did not resolve a single, distinct judicial unit, and its judgment is neither final nor appealable as to the claims against Brewer. This Court has no jurisdiction of the appeals by or against Brewer, which are hereby dismissed. See Erslon, 691 S.W.2d at 312.

III. Counts Against the Diocese

The circuit court dismissed all counts against the Diocese. Accordingly, the trial court resolved all legal issues and left open no remedies for the Gibsons against the Diocese. A circuit court may enter judgment as to fewer than all parties and certify that there is "no just reason for delay." Rule 74.01(b). When one defendant, but not all defendants, is dismissed from a case, the trial court may designate its judgment as final "for purposes of appeal." Spires v. Edgar, 513 S.W.2d 372, 375 (Mo. banc 1974). The circuit court did not abuse its discretion in determining that the judgments in favor of the Diocese were final and appealable. This Court has jurisdiction over the appeals against the Diocese. Mo. Const. art. V, § 10.

Review of dismissal of a petition allows pleadings their broadest intendment, treats all facts alleged as true, construes all allegations favorably to plaintiff, and determines whether averments invoke principles of substantive law. Farm Bureau Town & Country Ins. v. Angoff, 909 S.W.2d 348, 351 (Mo. banc 1995).

A. Failure To State A Claim
1. Breach of Fiduciary Duty

The Gibsons allege that the Diocese "stood in a fiduciary relationship with the plaintiffs as recipients of services controlled, directed and/or monitored by the defendant Diocese," and that the Diocese "held a fiduciary relationship of trust and confidence with the Gibsons." Other than these general conclusions, the Gibsons simply incorporate--as a "breach of fiduciary duty"--the other factual allegations in their petition.

Missouri is a fact-pleading state. Luethans v. Washington University, 894 S.W.2d 169, 171 (Mo. banc 1995). Pleadings must contain a "short and plain statement of the facts showing that the pleader is entitled to relief." Rule 55.05. Fact-pleading presents, limits, defines and isolates the contested issues for the trial court and the parties in order to expedite a trial on the merits. Luethans, 894 S.W.2d at 171-72.

The count of breach of fiduciary duty does not comply with the basic pleading rules. The trial court did not err in dismissing this count for failure to state a claim.

2. Conspiracy

The Gibsons allege that the Diocese conspired with Brewer to commit acts of sexual misconduct and intentional infliction of emotion distress, because it (1) knew or should have known that Brewer was committing sexual misconduct and failed to take any action to prevent it or to warn them, (2) failed to remove Brewer from his position, (3) hid the conduct of Brewer and other priests from the public, (4) refused to acknowledge the problem or educate the public, (5) ignored the problem, and (6) extracted confidentiality agreements from sex abuse victims.

A civil conspiracy is an agreement or understanding between persons to do an unlawful...

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