            IN THE MISSOURI COURT OF APPEALS
                     WESTERN DISTRICT
JOHN DOE B.P.,                           )
                                         )
             Appellant,                  )
                                         )
      v.                                 )   WD76155
                                         )
CATHOLIC DIOCESE OF KANSAS               )   Opinion filed: March 11, 2014
CITY-ST. JOSEPH,                         )
                                         )
             Respondent.                 )

     APPEAL FROM THE CIRCUIT COURT OF JACKSON COUNTY, MISSOURI
                    The Honorable Ann Mesle, Judge

                Before Division Four: James E. Welsh, Chief Judge,
             Joseph M. Ellis, Judge and Larry D. Harman, Special Judge


      John Doe B.P. ("Appellant") appeals from the dismissal of his claims against the

Catholic Diocese of Kansas City-St. Joseph ("the Diocese") in his action related to

sexual abuse allegedly suffered at the hands of Father Michael Tierney when Appellant

was approximately thirteen years old.    For the following reasons, the judgment is

affirmed.

      As a basis for his petition, Appellant asserted the following basic facts. In the

early 1970s, Father Tierney was assigned by the Diocese to St. Elizabeth's parish in

Kansas City, Missouri, where Appellant attended school and went to church. Over time,

Father Tierney befriended Appellant and his family.     Father Tierney would talk to
Appellant in the hallways, would ask Appellant for help with various things, and took him

out to eat at times. Sometime during the 1971-72 school year, Father Tierney asked

Appellant to help move some things at his mother's home. While in the home of Father

Tierney's mother, Father Tierney asked Appellant to go to the bedroom and, when

Appellant refused, Father Tierney tackled Appellant, forcibly held him down, and

fondled, caressed, and otherwise touched Appellant's chest, buttocks, anus, genitalia,

and thighs. Appellant repressed the memory of that event until October 2008.

       On September 29, 2010, Appellant filed his petition against Father Tierney and

the Diocese. With regard to the Diocese, Appellant asserted claims of (I) childhood

sexual abuse, (II) battery, (III) breach of fiduciary duty/confidential relationship, (IV)

failure to supervise children, (V) intentional failure to supervise clergy, (VI) negligent

supervision/retention,     (VII)   constructive      fraud,   (VIII)   fraud,    (IX)   fraudulent

misrepresentation, (X) conspiracy to commit fraud or constructive fraud, (XI) intentional

infliction of emotional distress, and (XII) negligent infliction of emotional distress. Those

claims were likewise asserted against Father Tierney with the exception of the negligent

supervision of clergy claim.

       The Diocese filed multiple motions seeking to have the various claims against it

dismissed. Ultimately, the trial court dismissed all of the claims against the Diocese.

Subsequently, Appellant voluntarily dismissed his claims against Father Tierney without

prejudice.1 Appellant now brings six points on appeal, challenging the dismissal of

some of his claims against the Diocese.



1
 In his third amended petition, Appellant had been allowed to add Thomas Reardon and Msgr. Thomas
O‟Brien as additional defendants and to assert claims of failure to supervise children against those
defendants. These claims were likewise voluntarily dismissed by Appellant.

                                                 2
        This Court reviews de novo a trial court's dismissal based upon a failure to state

a claim upon which relief may be granted. Ward v. West County Motor Co., 403

S.W.3d 82, 84 (Mo. banc 2013). In conducting our review, the facts contained in the

petition are treated as true and construed liberally in favor of the plaintiff.                     Doe v.

Roman Catholic Diocese of St. Louis, 311 S.W.3d 818, 821 (Mo. App. E.D. 2010). "If

the petition sets forth any set of facts that, if proven, would entitle the plaintiff[] to relief,

then the petition states a claim." Ward, 403 S.W.3d at 84.

        Appellant's first three points challenge the trial court's dismissal of his claim for

intentional failure to supervise clergy. 2          Though they make different arguments, the

differences between them are subtle, and there is a significant amount of overlap. All of

the claims assert that the trial court interpreted too narrowly the holding of the Missouri

Supreme Court in Gibson v. Brewer, 952 S.W.2d 239, 248 (Mo. banc 1997), wherein

the Supreme Court set forth the elements of a cause of action for intentional failure to

supervise clergy. "In Gibson, . . . the Missouri Supreme Court held that, although the

First Amendment barred negligence-based claims against a religious organization for


2
  The Diocese contends that Appellant abandoned his cause of action for intentional failure to supervise
clergy by failing to include such a claim in the amended petitions that were filed following the trial court‟s
dismissal of that claim. “The general rule is that the filing of an amended pleading operates as an
„abandonment‟ of the original petition.” Beckman v. Miceli Homes, Inc., 45 S.W.3d 533, 543 (Mo. App.
E.D. 2001). “Thus, it has been held that an amendment to a pleading abandons any prior pleadings not
referred to or incorporated into the new pleading, and the abandoned pleading may not be considered for
any purpose.” Id. (internal quotation and citation omitted). An exception to this rule has been
established, however, where the reason for dismissal of the count is not correctable by an amended
pleading and re-filing those claims would be a useless procedural gesture. Prayson v. Kansas City
Power & Light Co., 847 S.W.2d 852, 859 (Mo. App. W.D. 1992). The trial court dismissed Appellant‟s
intentional failure to supervise clergy claim because Appellant‟s pleadings reflected that the alleged
sexual contact occurred in the home of Father Tierney‟s mother and failed to establish that the tortious
activity occurred on premises owned or controlled by the Diocese or that Father Tierney was using chattel
owned by the Diocese, as required by Gibson. As a result, the court determined that Appellant failed to
state a claim for which relief could be granted. Since this problem was not correctable by an amended
pleading, the inclusion of this claim in Appellant‟s amended petitions would have been a useless
procedural gesture. See Id. As the exception to the abandonment rule is applicable, we decline to
dispose of Appellant‟s first three points summarily based upon abandonment.

                                                      3
sexual abuse conducted by one of its clergy, the plaintiff could bring a claim for

intentional failure to supervise clergy." D.T. v. Catholic Diocese of Kansas City-St.

Joseph, Case No. WD 76025, 2013 WL 5979189 at *7 (Mo. App. W.D. 2013)

(emphasis in original). As to the elements of that cause of action, the Missouri Supreme

Court stated:

        A cause of action for intentional failure to supervise clergy is stated if (1)
        a supervisor (or supervisors) exists (2) the supervisor (or supervisors)
        knew that harm was certain or substantially certain to result, (3) the
        supervisor (or supervisors) disregarded this known risk, (4) the
        supervisor's inaction caused damage, and (5) the other requirements of
        the Restatement (Second) of Torts, section 317 are met.

Gibson, 952 S.W.2d at 248. Section 317 of the Restatement (Second) of Torts (1965),

in turn, provides that a master has a duty to control a servant while the servant is acting

outside the scope of employment and to prevent him from intentionally harming others

when:

        (a) the servant

                (i) is upon the premises in possession of the master or upon which
                the servant is privileged to enter only as his servant, or

                (ii) is using a chattel of the master, and

        (b) the master

                (i) knows . . . that he has the ability to control his servant, and

                (ii) knows . . . of the necessity and opportunity for exercising such
                control.

        In dismissing Appellant's claim, the trial court noted that a cause of action for

intentional failure to supervise clergy requires that the underlying misconduct occur on

premises in possession or control of the Diocese or in a place where Father Tierney

was only privileged to enter based upon his status as servant of the Diocese. The trial


                                                4
court dismissed the claim because Appellant's petition established that the alleged

sexual misconduct occurred at the home of Father Tierney's mother and did not aver

that the Diocese owned or had any right to occupy or control that private residence.

       In his first point, Appellant contends that the trial court too narrowly construed the

premises requirement of Gibson in dismissing his claim for intentional failure to

supervise clergy. He argues that Father Tierney's mother's house should be considered

property under Diocese control for the purposes of analyzing a claim under Gibson

because Appellant was only present at that location because he and his family trusted

Father Tierney as a priest.

       This Court rejected an identical argument in D.T. v. Catholic Diocese of

Kansas City-St. Joseph, Case No. WD 76025, 2013 WL 5979189 at *6 (Mo. App.

W.D. 2013), wherein a different plaintiff asserted a claim against the Diocese based

upon Father Tierney having sexually assaulted him in the home of Father Tierney's

mother and in a hotel room. Noting that the Eastern District had rejected a similar

argument in Doe v. Roman Catholic Archdiocese of St. Louis, 347 S.W.3d 588, 593

(Mo. App. E.D. 2011), this Court concluded that neither Father Tierney's mother's home

nor the hotel room could be considered property possessed by the Diocese or property

upon which Father Tierney was privileged to enter only because of his status as a priest

as required by Gibson. Id. The fact that Appellant decided to go to the home of Father

Tierney's mother and to the hotel room because of Father Tierney's status as a priest

did not alter that fact. Id.

       For the same reasons we rejected this argument in D.T., we must reject

Appellant's claim in the case at bar. The fact that Appellant chose to go to the house



                                             5
because Father Tierney was a priest does not establish Diocese control of the property

or that Father Tierney was privileged to enter upon that property only because of his

status as an employee of the Diocese. Point denied.

      In his second point, Appellant argues that his averments related to "grooming"

activity that had occurred on Diocese property prior to the incident in the home were

sufficient to satisfy the premise requirement of Gibson. Appellant claims that Father

Tierney's actions in befriending him and obtaining his trust were inseparable from the

incident of sexual abuse that later occurred in the home of Father Tierney's mother.

      Identical arguments to those advanced by Appellant have previously been

rejected by both the Western and Eastern Districts of this Court in D.T. v. Catholic

Diocese of Kansas City-St. Joseph, Case No. WD 76025, 2013 WL 5979189 at *6

(Mo. App. W.D. 2013), and Doe v. Roman Catholic Archdiocese of St. Louis, 347

S.W.3d 588, 593 (Mo. App. E.D. 2011). "The so-called 'grooming' cited by [Appellant]

does not qualify as sexual abuse, and, as such, does not satisfy the fifth requirement of

a claim for intentional failure to supervise, which requires the sexual abuse to occur on

property possessed by the church." Doe, 347 S.W.3d at 593. Further, none of the case

law cited by Appellant supports his claim that the "grooming" activities, which were

otherwise innocent and some of which occurred on property belonging to the Diocese,

were inseparable from the ultimate acts of sexual abuse alleged to have occurred in the

home of Father Tierney's mother. D.T., 2013 WL 5979189 at *6. Point denied.

      In his third point, Appellant contends that the trial court misinterpreted Gibson as

holding that section 317 of the Restatement (Second) of Torts is the only mechanism

available for finding an employer of clergy responsible for the torts of its employee that



                                            6
are committed outside the scope of employment. He claims that Gibson left open the

potential for other mechanisms to give rise to a claim for intentional failure to supervise

clergy. This Court addressed, at length, arguments mirroring those now advanced by

Appellant in D.T. v. Catholic Diocese of Kansas City-St. Joseph, Case No. WD

76025, 2013 WL 5979189 at *7-12 (Mo. App. W.D. 2013).                 In short, Appellant is

incorrect that the language of Gibson would allow for other elements to be substituted in

favor of Section 317 of the Restatement (Second) of Torts (1965). Id. at *11. "[O]ur

Supreme Court has announced a very specific number of elements that must be

satisfied in order to establish the tort of intentional failure to supervise clergy," and

"[p]ursuant to the mandate of the Missouri Constitution, once the elements of this cause

of action have been announced by the Missouri Supreme Court, only that court may

modify the elements." Id. This Court is not at liberty to adopt alternative elements to

the tort of intentional failure to supervise clergy established in Gibson. Id. at 12. Point

denied.

       In his fourth point, Appellant generally contends that the trial court erred in

dismissing his claims because the trial court misinterpreted Gibson as precluding

supervisory torts, aside from intentional failure to supervise clergy, whether based on

intentional or negligent actions, from being brought against the Diocese. He further

generally contends that "Gibson specifically recognizes that liability against a religious

entity will lie in circumstances that include those found in this case."

       Appellant had multiple claims dismissed by the trial court in multiple different

orders. By failing to identify, in his point relied on or in his argument, what ruling or

rulings on the part of the trial court he claims to be erroneous or what specific cause or



                                              7
causes of action were improperly dismissed, Appellant fails to comply with the

requirements of Rule 84.04. "Under Rule 84.04, it is not proper for the appellate court

to speculate as to the point being raised by the appellant and the supporting legal

justification and circumstances." Willis v. Missouri Farm Bureau Servs., Inc., 396

S.W.3d 451, 454 (Mo. App. W.D. 2013) (internal quotation omitted). "Speculation on an

appellant's arguments is not permitted by the appellate courts because such speculation

would cast the court in the role of an advocate for the appellant." Id. (internal quotation

omitted). Unable to discern, without resorting to speculation, exactly what ruling or

rulings are being challenged or which causes of action are claimed to have been

erroneously dismissed, we must decline to address this point. We gratuitously note

that, while we agree with Appellant's general contention that Gibson does not bar all

conceivable negligence actions against religious organizations,3 the trial court properly

interpreted Gibson as barring all of the claims asserted by Appellant against the

Diocese that stemmed from Father Tierney's alleged sexual abuse of Appellant and the

Diocese supervision of Father Tierney and/or Appellant. See D.T., 2013 WL 5979189

at *5; Gibson, 952 S.W.2d at 245-50. Point denied.

        In his fifth point, Appellant contends that the trial court erred in dismissing his

claim against the Diocese for negligent failure to supervise a child because the trial

court misinterpreted Gibson as precluding such a claim.                   This court has previously

rejected identical arguments to those advanced by Appellant in D.T. v. Catholic

Diocese of Kansas City-St. Joseph, Case No. WD 76025, 2013 WL 5979189 at *4

(Mo. App. W.D. 2013). In that case, we concluded that claims that the Diocese was

3
   Indeed, Gibson expressly notes that a religious organization could be vicariously liable for acts of its
clergy related to the negligent operation of a motor vehicle or for negligent maintenance of its property
resulting in a dangerous condition. Gibson, 952 S.W.2d at 246.

                                                    8
negligent in its supervision of another child, who claimed to have been molested by

Father Tierney in the home of Father Tierney's mother and in a hotel room, neither of

which were owned or controlled by the diocese, were precluded by Gibson, which is

binding on this Court. Id. at *5. We further noted that the Eastern District, addressing

the same basic arguments, interpreted Gibson to bar all negligence claims against a

diocese resulting from the sexual abuse of a minor parishioner by a priest. Id. (citing

Doe v. Roman Catholic Archdiocese of St. Louis, 347 S.W.3d 588, 595 (Mo. App.

E.D. 2011) & Doe v. Roman Catholic Archdiocese of St. Louis, 311 S.W.3d 818 (Mo.

App. E.D. 2010)). For the same reasons stated in D.T., Appellant's fifth point in the

case at bar is denied.

       In his sixth point, Appellant argues that the trial court erred in dismissing his

various negligence claims based upon Gibson because Gibson was incorrectly decided.

He claims Gibson misinterpreted and misapplied the Free Exercise Clause and the

Establishment Clause in holding that the First Amendment barred negligence-based

claims against religious organizations for sexual abuse conducted by one of its clergy.

This point must be summarily denied.

       "A claim that the Missouri Supreme Court has incorrectly decided a previous

case or cases is not cognizable in the Missouri Court of Appeals." Independence-Nat.

Educ. Ass'n v. Independence Sch. Dist., 162 S.W.3d 18, 21 (Mo. App. W.D. 2005).

"Missouri's Constitution expressly states that the Missouri Supreme Court 'shall be the

highest court in the state' and that its 'decisions shall be controlling in all other courts.'"

Doe, 311 S.W.3d at 822 (quoting Mo. Const. art. V, Section 2). "As such, we are

constitutionally bound to follow the most recent controlling decision of the Missouri



                                              9
Supreme Court, and inquiries questioning the correctness of such a decision are

improper." Id. (internal quotation omitted). "Until the Missouri Supreme Court or the

United States Supreme Court declares differently, Gibson constitutes controlling law in

Missouri, law which we are bound to apply." Doe, 347 S.W.3d at 595. Point denied.

       The judgment is affirmed.




                                                   ________________________________
                                                   Joseph M. Ellis, Judge
All concur.




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