McArthur v. Beech Haven Baptist Church of Athens

368 Ga.App. 525

890 S.E.2d 427

MCARTHUR et al. v. BEECH HAVEN BAPTIST CHURCH OF ATHENS et al.

A21A0898

Court of Appeals of Georgia.

June 29, 2023

Christopher Todd Giovinazzo, Atlanta, Darren Wade Penn, Alexandra "Sachi" Cole, Michael Brian Terry, Jane D. Vincent, Kevin Ketner, Atlanta, for Appellant.

Anthony L. Cochran, M. Steven Heath, Atlanta, Kevin Harrison Hudson, Robert M. Martin, Matthew Allen Moseley, Edward Donald Tolley, Mary Lillian Walker, Kathryn S. Whitlock, Mark Adam Silver, Athens, Zachary Richard Hall, Stephen William Rothring, Atlanta, for Appellee.

Doyle, Presiding Judge.

This appeal encompasses two orders dismissing three churches — Green Acres Baptist Church, Beech Haven Baptist Church of Athens, and First Baptist Church of Athens — from lawsuits brought by six plaintiffs alleging sexual abuse. In the plaintiffs’ initial appeal (" McArthur I "), this Court affirmed the trial court's dismissal of the complaints, holding inter alia that the plaintiffs could not benefit from fraud-based tolling and that the statutes of limitations had expired. ¹ The Supreme Court of Georgia vacated and remanded, holding that we should reconsider our decision in light of the recently-issued Doe v. St. Joseph's Catholic Church . ²

Based on St. Joseph's and for the reasons set forth below, we: affirm the trial court's dismissal of the RICO (Racketeer Influenced and Corrupt Organizations), ³ respondeat superior, and public nuisance claims; reverse the trial court's dismissal of the fraudulent misrepresentation, fraudulent concealment, failure to provide adequate security, failure to train, supervise, and monitor, failure to warn, and negligent retention claims, as well as the derivative attorney fee and punitive damages claims; and vacate the trial court's dismissal of the Doe complaints, and remand for reconsideration of the issue in accordance with this opinion.

Viewing all well-pled allegations in the complaint as true, ⁴ the record shows the following. Ernest Boland was a scoutmaster at the three Athens-based churches from 1950 until 1977. The complaints alleged that Boland abused William Doe while he was a member of a boy scout troop at First Baptist in the 1950s; Dennis Doe and Tim Doe while they were members of a boy scout troop at Green Acres Baptist in the 1960s and 1970s; and Robert Doe, John Doe, and Alan McArthur while they were members of a boy scout troop at Beech Haven Baptist in the 1970s. The last alleged abuse by the plaintiffs took place in 1981. Robert Doe additionally alleged that an assistant scoutmaster to Boland, Fleming Weaver, abused him in 1977. The plaintiffs contended that the churches were aware of Boland's and Weaver's abuse, but concealed their actions, failed to protect the minor scouts, and failed to inform the public.

In August 2018, five of the plaintiffs — Alan McArthur and four of the Doe plaintiffs — filed their complaints against several defendants, including the churches. Four of the complaints purported to be a renewal action of a previously filed lawsuit from May 2017. The court consolidated the cases into a single action. In June 2019, Robert Doe filed a complaint asserting a substantially similar factual basis as the consolidated action, but with the addition of Weaver as a defendant.

With respect to the churches, the plaintiffs asserted claims of, among other things: public nuisance, violations of Georgia's RICO Act, fraudulent misrepresentation, fraudulent concealment, negligent hiring, and respondeat superior/vicarious liability. In two orders, the trial court dismissed the plaintiffs’ claims against the churches, finding, among other things, that their claims were time-barred. This appeal by the plaintiffs followed.

A motion to dismiss may be granted only where a complaint shows with certainty that the plaintiff would not be entitled to relief under any state of facts that could be proven in support of his or her claim. We review the trial court's ruling on a motion to dismiss under the de novo standard of review. The dismissal of a complaint will be affirmed if right for any reason. ⁵

With these guiding principles in mind, we now turn to the plaintiffs’ claims of error.

1. Before we address the Supreme Court's holdings in St. Joseph's , we first examine the other bases the trial court enumerated in dismissing the complaints.

(a) The trial court found that the plaintiffs could not assert a renewal action against First Baptist because the plaintiffs never received permission from the court to add First Baptist to the original action.

In May 2017, McArthur and Dennis Doe filed their original complaint against Green Acres, Beech Haven, and other parties. In June 2017, the plaintiffs amended their complaint to add First Baptist as a defendant and John Doe and William Doe as plaintiffs. In response to motions to dismiss, the plaintiffs voluntarily dismissed their complaint in February 2018 before the court ruled on the motion. In August 2018, McArthur, John Doe, Timothy Doe, William Doe, and Dennis Doe each filed a complaint against the churches, including First Baptist. The complaints, with the exception of Timothy Doe's, purported to be a renewal action of the previous suit.

"When an amended complaint adds a defendant, the party seeking to amend under OCGA § 9-11-15 must seek leave of court as required by OCGA § 9-11-21." ⁶ If a plaintiff fails to seek leave of court, then the court may dismiss the newly added defendants from the case. ⁷

In Valdosta Hotel Properties v. White , the plaintiff attempted to add a party without seeking leave of court. ⁸ That party filed a motion to dismiss, but before the trial court could address the issue, the plaintiff voluntarily dismissed her complaint. ⁹ The plaintiff subsequently filed a purported renewal action against the new defendant. ¹⁰ This Court held that, because the plaintiff never sought leave of court to add the new defendant, the new defendant was not a defendant in the original action, and thus the plaintiff's subsequent lawsuit was not a renewal action against it. ¹¹

The plaintiffs here attempt to distinguish Valdosta by arguing that their failure to seek leave of court to add First Baptist as a party to the original complaints was a voidable defect, and thus the plaintiffs could assert a renewal action against First Baptist. While this Court has held in another case that a plaintiff may seek leave of court while simultaneously filing an amended complaint adding a party, the plaintiff must still receive permission to add the party. ¹² In that case, "permission to add a party was required, and permission was given." ¹³ And although this Court has held that a party may file a renewal action where the original complaint was voidable, the original action was voidable in that case because it "was a defect correctable by amendment[.]" ¹⁴ Here, the plaintiffs never sought leave to add First Baptist as a party, nor was this a defect correctable by amendment. Accordingly, the trial court did not err in finding that the plaintiffs failed to assert a proper renewal action. ¹⁵

However, the trial court also found that the plaintiffs’ renewal actions thus failed as a matter of law. But in Valdosta , the plaintiff's lawsuit was "undisputedly filed after the expiration of the ... statute of limitation[.]" ¹⁶ As explained below, and based on the Supreme Court's decision in St. Joseph's , at this procedural posture the plaintiffs may introduce evidence within the framework of the complaint to satisfy the statutes of limitation. Thus, while we affirm the trial court's determination that the complaints were not renewal actions against First Baptist, we reverse the wholesale dismissal of the plaintiff's claims against that church.

(b) The trial court dismissed the claims brought by the Doe plaintiffs, finding that they could not bring the lawsuits under pseudonyms.

"In general, Georgia law mandates that parties to a lawsuit identify themselves in their respective pleadings and that every action be prosecuted in the name of the real party in interest." ¹⁷ However, under the liberal pleading standards of the Civil Practice Act, ¹⁸ this Court has rejected the "overly rigid" argument that a plaintiff's complaint is a nullity merely due to her use of a pseudonym. ¹⁹ Because the trial court relied solely on the Doe plaintiffs’ use of a pseudonym in dismissing their complaints, we vacate the trial court's dismissal on this basis, and remand for reconsideration of this argument. We vacate, rather than simply reverse, because it is unclear from the appellate record when the churches and/or the trial court discovered the identity of the Doe plaintiffs. ²⁰

(c) The trial court dismissed the plaintiffs’ claims against First Baptist regarding failure to train, supervise, and warn because the alleged abuse did not occur on church property.

An employer may be liable for a failure to exercise due care in selecting, retaining or supervising an employee or volunteer when such a person departs from the prosecution of his business and commits a tort while acting without the scope of his authority.... [A]n employer may be held liable for such a tort only where there is sufficient evidence to establish that the employer reasonably knew or should have known of an employee's tendencies to engage in certain behavior relevant to the injuries allegedly incurred by the plaintiff, such that it is reasonably foreseeable that the employee could cause the type of harm sustained by the plaintiff. ²¹

The trial court focused on premises liability law in dismissing these claims, but the standard listed above does not involve premises liability. Indeed, this Court has allowed a negligent hiring, retention, and supervision claim and a failure to warn claim to proceed against a church where a volunteer allegedly molested a child next to, but not on, church property. ²² While the location might be relevant as to whether the employee or volunteer...