John Doe 67C v. Archdiocese of Milwaukee

• Decision Date: 13 July 2005
• Docket Number: 2003AP1417.,No. 2003AP1416 ,2003AP1416
• Citation: 700 N.W.2d 180,2005 WI 123,284 Wis.2d 307
• Parties: JOHN DOE 67C, Jane Doe 67E, Jonathan Gillespie, John Doe 67D, and Jim Gillespie, Plaintiffs-Appellants, v. ARCHDIOCESE OF MILWAUKEE, St. John the Evangelist Church, Alias Insurance Company #1, and Alias Insurance Company #2, Defendants-Respondents. JOHN DOE 67A, James Ahler, Plaintiffs-Appellants, JOHN DOE 67F, Plaintiff-Appellant-Petitioner, Gregory HUDON, and John Doe 67B, Plaintiffs-Appellants, v. ARCHDIOCESE OF MILWAUKEE, St. John the Evangelist Church, Alias Insurance Company #1, and Alias Insurance Company #2, Defendants-Respondents.
• Court: Wisconsin Supreme Court

284 Wis.2d 307

2005 WI 123

700 N.W.2d 180

JOHN DOE 67C, Jane Doe 67E, Jonathan Gillespie, John Doe 67D, and Jim Gillespie, Plaintiffs-Appellants, v. ARCHDIOCESE OF MILWAUKEE, St. John the Evangelist Church, Alias Insurance Company #1, and Alias Insurance Company #2, Defendants-Respondents.

JOHN DOE 67A, James Ahler, Plaintiffs-Appellants, JOHN DOE 67F, Plaintiff-Appellant-Petitioner, Gregory HUDON, and John Doe 67B, Plaintiffs-Appellants, v. ARCHDIOCESE OF MILWAUKEE, St. John the Evangelist Church, Alias Insurance Company #1, and Alias Insurance Company #2, Defendants-Respondents.

No. 2003APAP1417.

Supreme Court of Wisconsin.

Oral argument April 12, 2005.

Decided July 13, 2005.

For the plaintiffs-appellants there were briefs by Jeffrey R. Anderson and Jeff Anderson & Associates, St. Paul, MN, and Marci A. Hamilton and Benjamin Cardozo School of Law, New York, NY, and James S. Smith and Steinhafel, Smith & Rowen SC, Brookfield, and oral argument by Marci A. Hamilton.

For the defendants-respondents there was a brief by John A. Rothstein, O. Thomas Armstrong, David P. Muth and Quarles & Brady LLP, Milwaukee, and oral argument by John A. Rothstein.

An amicus curiae brief was filed by James A. Johnson and Johnson & Houlihan, S.C., Rhinelander, on behalf of the Leadership Council on Child Abuse & Interpersonal Violence.

¶ 1. DAVID T. PROSSER, J.

This is a review of an unpublished decision of the court of appeals, John Doe 67C v. Archdiocese of Milwaukee, Nos. 2003AP1416 and 2003AP1417, unpublished slip op. (Wis. Ct. App. July 30, 2004), affirming an order of the circuit court for Milwaukee County, Michael D. Guolee, Judge, dismissing plaintiff John Doe 67F's lawsuit against the Archdiocese of Milwaukee (the Archdiocese). We are called upon to decide whether John Doe 67F's (Doe) complaint states a claim upon which relief can be granted. We hold that it does not, and therefore affirm the decision of the court of appeals.

¶ 2. Doe alleges that Father George Nuedling, a priest of the Archdiocese, sexually abused him during the years 1960-62, while Nuedling served at St. Rita Parish in West Allis, Wisconsin. He alleges that because of the traumatic nature of Nuedling's abuse, he immediately repressed all memory of it. Doe claims that his memories surfaced in 2002, amid revelations by the Archdiocese that it knew about Nuedling's abusive tendencies as early as the 1980s. Because Nuedling died in 1994, Doe could not directly sue him; accordingly, he (and nine other plaintiffs alleging abuse by Nuedling) sued the Archdiocese, Nuedling's employer.

¶ 3. Doe's suit alleges three causes of action: negligence, "fiduciary fraud," and breach of fiduciary duty. Under the first theory, Doe alleges that the Archdiocese negligently supervised its employee, Nuedling. Under the second theory, Doe alleges that the Archdiocese both affirmatively misrepresented information about Nuedling and concealed information about Nuedling. Under the third theory, Doe alleges that the Archdiocese concealed information about Nuedling despite its alleged fiduciary relationship with Doe.

¶ 4. The circuit court dismissed Doe's suit, relying on our decisions in John BBB Doe v. Archdiocese of Milwaukee, 211 Wis. 2d 312, 565 N.W.2d 94 (1997), L.L.N. v. Clauder, 209 Wis. 2d 674, 563 N.W.2d 434 (1997), and Pritzlaff v. Archdiocese of Milwaukee, 194 Wis. 2d 302, 533 N.W.2d 780 (1995). This appeal stems from that dismissal.

¶ 5. We note at the outset that all three causes of action require that at the time of Nuedling's alleged wrongful acts (1960-62), the Archdiocese had contemporaneous knowledge of Nuedling's abusive tendencies. Doe's complaint broadly alleges that the Archdiocese "knew or should have known of Nuedling's problems...." It provides the basis for this claim by alleging that the Archdiocese had knowledge about Nuedling from events that occurred in 1980, 1986, 1987, 1993, 2001, and 2002. The complaint asserts nothing from which a person could infer that the Archdiocese had knowledge of Nuedling's misconduct before 1980. ¶ 6. We conclude that for any of Doe's claims to survive, he had to allege that the Archdiocese knew or had a basis for knowing that Nuedling was a child molester as of 1960-62. His complaint makes no such allegations. As we cannot add unpleaded facts to Doe's complaint, we affirm the circuit court's dismissal of his claims without reaching the other defenses the Archdiocese raises.

I. BACKGROUND

¶ 7. When analyzing the circuit court's order dismissing Doe's claim, we must assume that the Archdiocese has admitted all the facts alleged in the complaint. Hermann v. Town of Delavan, 215 Wis. 2d 370, 378, 572 N.W.2d 855 (1998) (citing Evans v. Cameron, 121 Wis. 2d 421, 426, 360 N.W.2d 25 (1985)). Nuedling was ordained to the Roman Catholic priesthood on May 29, 1948. During his career, he worked at four parishes in the Archdiocese: St. Rita in West Allis (1948-64), St. Lawrence in Milwaukee (1964-67), St. Joseph in Grafton (1967-68), and St. John the Evangelist in Twin Lakes (1968-93). Nuedling died in 1994.

¶ 8. This appeal is a consolidation of ten lawsuits filed in Milwaukee County Circuit Court. All ten plaintiffs alleged abuse by Nuedling at some point during his career.

¶ 9. The ten complaints are quite similar. Doe's trial attorneys, Jeffrey R. Anderson and James S. Smith, represented all ten plaintiffs. On December 6, 2002, Anderson and Smith filed the first five cases for plaintiffs John Doe 67C, John Doe 67D, Jane Doe 67E, Jim Gillespie, and Jonathan Gillespie. The five complaints are nearly identical. All five plaintiffs alleged the same four causes of action: sexual battery, negligence, fiduciary fraud, and breach of fiduciary duty. All five alleged that the abuse occurred while Nuedling was pastor at St. John the Evangelist Church. The complaints contained the same number of paragraphs (52) and are textually identical except for minor details such as the names of the plaintiffs and the dates of the alleged abuse.

¶ 10. These five cases were consolidated by circuit court orders dated January 4, 2003. The Archdiocese filed a motion to dismiss the consolidated action on January 16, 2003.

¶ 11. On March 6, 2003, Anderson and Smith filed a second set of five cases, this time on behalf of James Ahler, Gregory Hudon, John Doe 67A, John Doe 67B, and John Doe 67F. Ahler, Hudon, Doe 67A, and Doe 67B alleged that the abuse occurred during Nuedling's tenure at St. John the Evangelist; the fifth plaintiff, John Doe 67F, alleged that the abuse occurred while Nuedling served at St. Rita in West Allis.

¶ 12. Unlike the first group of plaintiffs, the second group did not allege sexual battery as a theory of liability; however, in all other respects their complaints were largely identical to the first group's.¹ The second group alleged negligence, fiduciary fraud, and breach of fiduciary duty, as did the first group.

¶ 13. On March 10, 2003, the circuit court held a hearing to consider the Archdiocese's motion to dismiss the first set of cases. At this hearing, the plaintiffs' attorney voluntarily dismissed the sexual battery claims. He also addressed the issue of the date the Archdiocese knew of Nuedling's abusive proclivities:

And only this last year did [the plaintiffs] know that the church, the Archdiocese, the bishop and the archbishops knew that Nuedling had been a molester and had so known for 20 or more years, 20 or more years.

. . . .

And when do [the plaintiffs] first discover the [Archdiocese's] fraud? Last year [2002] when it was made known for the first time at least to [the plaintiffs], as far as we know to anybody else besides the officials of the church, that they had known that Nuedling was a molester, unfit.... And that they had received reports about him in the past for over two decades.

(Emphasis added.)

¶ 14. When questioned by the court as to the adequacy of the first five complaints regarding the date of the Archdiocese's knowledge, counsel responded:

[W]e plead the report of '86. We plead the report in '87. We plead the report of '93. We plead the report in ... July of 2001. We plead the report at 2002.... They failed to disclose this information.

(Emphasis added.) ¶ 15. The argument before the circuit court centered on whether our decisions in BBB Doe, Pritzlaff, and Clauder, in combination, mandated dismissal of the plaintiffs' claims. The Archdiocese argued that the instant claims are largely identical to the claims in John BBB Doe, while the plaintiffs attempted to distinguish all three cases. Ultimately, the circuit court sided with the Archdiocese, stating:

The plaintiff doesn't agree with the Wisconsin Supreme Court opinion[s] in Doe or Pritzlaff. They try to distinguish this case from that, but I think they failed to do so.

When you really read their Complaint and look at the case law, if they want to convince the Wisconsin Supreme Court to reverse the legal consideration or precedent that they have established, that is for the Wisconsin Supreme Court to do so.

. . . As I indicated before, this Court is not in the position, nor does it have the authority to overrule a Wisconsin Supreme Court decision I believe is directly on point here. No matter how we might try to embellish the arguments. It is the law of this state, and this trial court is obligated and mandated to follow the rulings of the highest court of our state....

. . . .

Based on the law as I read it and based on this Complaint, I am forced to dismiss all these actions failing to state a cause of action under the statute of limitations that they can proceed.

¶ 16. Both sides realized that the court's ruling dismissing the first group of claims was fatal to the second group, as the ten complaints were largely identical.² Accordingly, the parties stipulated to dismissal with prejudice of the second group of claims. ¶ 17. All ten plaintiffs appealed. However, by the time the court of appeals rendered its decision,...