MAINE SUPREME JUDICIAL COURT                                                        Reporter of Decisions
Decision: 2014 ME 72
Docket:   Cum-13-347
Argued:   April 8, 2014
Decided:  May 29, 2014

Panel:        SAUFLEY, C.J., and ALEXANDER, SILVER, MEAD, GORMAN, and JABAR, JJ.



                                    CHRISTINE S. ANGELL

                                                    v.

                                      RENALD C. HALLEE

SAUFLEY, C.J.

         [¶1] This appeal, the second in these proceedings, requires us to determine

whether the statute of limitations was tolled as a result of the defendant’s move to

Massachusetts during the applicable time frame. See Angell v. Hallee, 2012 ME

10, ¶¶ 9, 13, 36 A.3d 922; see also 14 M.R.S. § 866 (2013). 1 Specifically,

Christine S. Angell appeals from a summary judgment entered in the Superior

Court (Cumberland County, Cole, J.) in favor of Renald C. Hallee on Angell’s

complaint asserting multiple intentional torts based on allegations that, in the early

1970s, Hallee sexually assaulted her when she was a child and he was a Roman

Catholic pastor in Bangor. We affirm the entry of summary judgment.



   1
      In relevant part, 14 M.R.S. § 866 (2013) provides, “If a person is absent from and resides out of the
State, after a cause of action has accrued against him, the time of his absence from the State shall not be
taken as a part of the time limited for the commencement of the action.” This statute was in place
throughout the time period at issue here.
2

                                           I. SUMMARY

        [¶2] The statute that tolls the statute of limitations as to certain out-of-state

defendants will not toll the limitations period for any time during which Hallee was

amenable to service. Angell, 2012 ME 10, ¶¶ 9, 13, 36 A.3d 922. For Hallee to

have been amenable to service, (1) the law must have authorized service on him as

an out-of-state defendant, see 14 M.R.S.A. § 704-A (1980) (Maine’s long-arm

statute),2 and (2) Angell must have been able, “through reasonable effort,” to find

and serve Hallee, a Massachusetts resident, “by any means other than publication,”

Angell, 2012 ME 10, ¶ 9, 36 A.3d 922. We conclude that the record presented on

summary judgment demonstrates, without factual dispute, that Hallee was

amenable to service within the two-year limitations period applicable in this case

because he could have been served pursuant to Maine’s long-arm statute and

Angell could, through reasonable efforts, have located and served him.

Accordingly, we agree with the Superior Court that the statute of limitations

expired before Angell filed her complaint. See 14 M.R.S.A. § 753 (1965);3 Angell,

2012 ME 10, ¶¶ 9, 13, 36 A.3d 922.


    2
      Title 14 M.R.S.A. § 704-A (1980) was in place during the two years following Angell’s eighteenth
birthday. It has since been amended in part. See P.L. 1995, ch. 694, § D-14 (effective Oct. 1, 1997)
(codified at 14 M.R.S. § 704-A(2)(E) (2013)).
    3
      The statute provided, “Actions for assault and battery, and for false imprisonment, slander, libel and
malpractice of physicians and all others engaged in the healing art shall be commenced within 2 years
after the cause of action accrues.” 14 M.R.S.A. § 753 (1965). It was subsequently amended, but that
                                                                                                    3

                                      II. BACKGROUND

       [¶3] Angell, who was born in 1961, alleges that Hallee’s tortious conduct

occurred between 1970 and 1973, when she was between eight and eleven years

old and a parishioner of the Bangor church where Hallee served as a pastor.

Angell turned eighteen on November 16, 1979.

       [¶4]     On March 25, 2010—more than thirty years after she turned

eighteen—Angell filed her complaint against Hallee seeking damages, including

punitive damages, based on claims of negligence, sexual assault and battery,

invasion of privacy, intentional infliction of emotional distress, negligent infliction

of emotional distress, clergy malpractice, breach of fiduciary duty, and fraud.

Angell also sought damages, including punitive damages, from the Roman

Catholic Bishop of Portland (the Diocese) for fraudulent concealment, but these

claims were later dismissed with prejudice by stipulation. Angell, 2012 ME 10,

¶¶ 2, 4, 36 A.3d 922.

       [¶5] At the time when Angell alleges that Hallee committed the torts, and

throughout the two years following her eighteenth birthday, the generally

applicable two-year statute of limitations for assault and battery governed the

asserted causes of action. See 14 M.R.S.A. § 753; Angell, 2012 ME 10, ¶ 6, 36



amendment did not take effect until years after the period of time that determines the outcome of this
appeal. See P.L. 1985, ch. 804, § 1 (effective Aug. 1, 1988) (codified at 14 M.R.S. § 753 (2013)).
4

A.3d 922. The limitations period was tolled until Angell’s eighteenth birthday,

November 16, 1979.                 See 14 M.R.S.A. § 853 (1980) (incorporating a 1977

amendment);4 Angell, 2012 ME 10, ¶ 6, 36 A.3d 922. Therefore, the statute of

limitations expired two years later, on November 16, 1981, see 14 M.R.S.A. § 753,

unless the statute of limitations was further tolled because Hallee resided outside of

Maine and was not amenable to service, see 14 M.R.S. § 866. See Angell, 2012

ME 10, ¶¶ 6, 9, 36 A.3d 922.5

          [¶6] Although the Legislature enacted amendments to lengthen the statute

of limitations after the two-year period following Angell’s birthday,6 for her to take

advantage of those lengthened statutes of limitations, tolling would be required

both during the two-year period after she turned eighteen and during the additional
    4
      The statute provided, in relevant part, “If a person entitled to bring any of the actions under sections
752 to 754 . . . is a minor . . . when the cause of action accrues, the action may be brought within the times
limited herein after the disability is removed.” 14 M.R.S.A. § 853 (1980). The amendment to the statute
that took effect in 1977, during the tolling period for Angell’s minority, did not modify the relevant
language quoted here. See P.L. 1977, ch. 492, § 2 (effective Oct. 24, 1977) (codified at 14 M.R.S.A.
§ 853 (1980)); see also 14 M.R.S.A. § 853 (1965).
    5
     The separate statute now in effect that provides that there is no time limitation on actions based on
sexual acts toward minors did not take effect until 2000. See P.L. 1999, ch. 639, § 1 (effective Aug. 11,
2000) (codified at 14 M.R.S. § 752-C (2013)); Angell v. Hallee, 2012 ME 10, ¶ 6, 36 A.3d 922.
    6
        We provided the history of the legislative changes in our earlier decision in this case:

          P.L. 1985, ch. 343, § 1 (effective Sept. 19, 1985) (enacting a six-year limitations period
          on claims based on sexual acts toward minors); P.L. 1989, ch. 292 (effective Sept. 30,
          1989) (adding a three-year discovery period); P.L. 1991, ch. 551, § 1 (effective Oct. 9,
          1991) (extending the limitations period to twelve years and the discovery period to six
          years for claims not barred by the previous statute of limitations); P.L. 1999, ch. 639, § 1
          (effective Aug. 11, 2000) (eliminating the limitations period altogether for claims not
          barred by the previous statute of limitations).

Angell, 2012 ME 10, ¶ 7, 36 A.3d 922.
                                                                                  5

time that passed before each new legislative change. See Angell, 2012 ME 10, ¶ 7,

36 A.3d 922; Dobson v. Quinn Freight Lines, Inc., 415 A.2d 814, 816-17 (Me.

1980) (holding that legislation lengthening a statute of limitations “does not have

the effect of changing the legal significance of prior events or acts” and is not

impermissible retroactive legislation); see also Morrissette v. Kimberly-Clark

Corp., 2003 ME 138, ¶ 15, 837 A.2d 123 (noting that changes in a statute of

limitations may extend the limitation period but cannot “revive cases in which the

statute of limitations has expired”). Angell argues that the limitations period was

tolled beyond the two years following her eighteenth birthday because Hallee was

residing outside of Maine beginning before she turned eighteen and throughout the

next thirty years.

      [¶7]     Hallee initially moved for judgment on the pleadings, M.R.

Civ. P. 12(c), arguing that Angell’s complaint was time-barred. See Angell, 2012

ME 10, ¶ 3, 36 A.3d 922. The Superior Court granted Hallee’s motion and entered

judgment for Hallee on the pleadings. Id. ¶ 4.

      [¶8] On appeal, we vacated the court’s judgment and remanded for further

proceedings. Id. ¶ 13. We held that the tolling issue relating to Hallee’s residence

outside of Maine could not be decided through a motion for judgment on the

pleadings because certain factual determinations were required. Id. Specifically,

we held that, to prevail on a statute-of-limitations defense when tolling has been
6

asserted pursuant to section 866, an out-of-state defendant has the burden to show

that the limitations period was not tolled because the defendant was “amenable to

service” during the limitations period. Id. ¶ 9 (quotation marks omitted); see id.

¶ 10. A defendant is considered to have been “amenable to service” if, throughout

the limitations period, the law authorized service of the defendant in the

defendant’s state of residence and the plaintiff could, “through reasonable effort,”

have found and served the defendant by any means other than publication. Id. ¶ 9

(quotation marks omitted).      Because Hallee could not, through a motion for

judgment on the pleadings, meet the evidentiary burden of establishing his

statute-of-limitations defense by demonstrating the inapplicability of section 866,

we vacated the entry of judgment on the pleadings and remanded for further

proceedings. Id. ¶¶ 9-10, 13.

      [¶9] On remand, Hallee moved for summary judgment, and the parties

provided statements of material facts in support of and in opposition to summary

judgment, supported by affidavits and evidence authenticated by those affidavits.

See M.R. Civ. P. 56(h). Viewed in the light most favorable to Angell, the materials

submitted establish the following facts concerning whether Hallee established that

he was amenable to service, that is, that (1) Maine’s long-arm statute authorized

service on him, and (2) Angell could, through reasonable effort, have found and

served him by means other than publication during the two-year limitations period
                                                                                                      7

that began on November 16, 1979, and expired on November 16, 1981.7 See

Angell, 2012 ME 10, ¶¶ 9-10, 36 A.3d 922.

       [¶10] Hallee served as an assistant pastor in Bangor in the early 1970s,

when Angell alleges the sexual assaults occurred. While Angell was still a child,

Angell’s father received information that Hallee had committed sexual acts against

her. He made efforts to locate Hallee through the Bangor church in 1971 or 1972,

but he was unable to obtain information about Hallee’s location. The only efforts

to search for Hallee that Angell personally undertook were by asking others in the

parish in Bangor where he had gone and searching for him on the Internet after she

gained Internet access in 1998 or 1999. She did not know his full name or its

proper spelling until after commencing the present litigation.

       [¶11] After serving as an assistant pastor in Bangor, Hallee was transferred

by the Diocese in September 1973 to serve at a church in Fort Kent. The Diocese

announced Hallee’s move to Fort Kent in a news release. Both the St. John Valley

Times and the Bangor Daily News reported on the transfer and identified Hallee.

The Bangor Daily News included a photograph in its story.

       [¶12] Hallee took a leave of absence from the church in March 1977 and

briefly resided in his parents’ home in Waterville. In 1977, Hallee moved to

   7
     Because we ultimately conclude that the statute of limitations expired on November 16, 1981, any
events that occurred after that date are not material to our analysis of this appeal. See Morrissette v.
Kimberly-Clark Corp., 2003 ME 138, ¶ 15, 837 A.2d 123.
8

Massachusetts, where he has lived ever since. He was residing in Somerville on

November 16, 1979, when Angell turned eighteen.         He was working for the

Lexington Public Schools at that time, and he continued to work there through

January 2007. His name and address were listed in a publicly available list of

residents maintained by the City of Somerville. Hallee moved from Somerville to

North Reading in March 1983.

      [¶13] The Diocese communicated with Hallee by mail at various times after

he left the ministry in Fort Kent, including when he lived in Somerville. In 1980,

while the two-year statute of limitations was running, two separate individuals in

the Diocese sent mail to Hallee in Somerville. There is also evidence in the record

that a priest from Fort Kent informed the Bishop of Portland of Hallee’s

Somerville address in a September 1981 letter. Some of Hallee’s friends and

family in Maine, including his sister, also knew where he lived, though Angell did

not personally know any of those people.

      [¶14] According to the current Chancellor for the Diocese, who has worked

in the Chancery Office in one capacity or another since 1974, the Diocese has

never had difficulty obtaining Hallee’s current address when it has needed it. The

Chancellor knows of only one inquiry made of the Diocese about Hallee’s

whereabouts for purposes of service of process—the inquiry made by Angell’s
                                                                                  9

counsel in 2009. The Chancellor forwarded that inquiry to Diocesan counsel, who

“answered it by letter dated May 28, 2009.”

      [¶15] On this record, the court entered summary judgment in favor of

Hallee. Angell has appealed to us.

                                III. DISCUSSION

      [¶16] “Summary judgment is properly granted if the record reflects that

there is no genuine issue of material fact and the movant is entitled to a judgment

as a matter of law.” Doe v. Reg’l Sch. Unit 26, 2014 ME 11, ¶ 13, 86 A.3d 600

(quotation marks omitted); see M.R. Civ. P. 56(c). We review de novo whether,

on a motion for summary judgment, a dispute of material facts exists and whether

the entry of a summary judgment was proper as a matter of law. Estate of Lewis v.

Concord Gen. Mut. Ins. Co., 2014 ME 34, ¶ 10, 87 A.3d 732. For purposes of this

review, we consider the evidence in the light most favorable to Angell as the party

against whom judgment has been entered. See id.

      [¶17] “A fact is material if it has the potential to affect the outcome of the

suit,” and a genuine issue of material fact exists when a fact-finder “must choose

between competing versions of the truth,” even if one party’s version appears more

credible or persuasive. Id. (quotation marks omitted). The nonmoving party is

given “the full benefit of all favorable inferences that may be drawn from the facts
10

presented.” Curtis v. Porter, 2001 ME 158, ¶ 9, 784 A.2d 18 (quotation marks

omitted).

            [¶18]      As the party raising the affirmative defense of the statute of

limitations, see M.R. Civ. P. 8(c), Hallee bears the burden of establishing that,

although he resided outside of Maine, he was amenable to service because Maine’s

long-arm statute permitted service of the complaint in Massachusetts and “the

plaintiff could, through reasonable effort,” have found and served him “by any

means other than publication” before November 16, 1981. Angell, 2012 ME 10,

¶¶ 9-10, 36 A.3d 922.

            [¶19] There is no genuine issue of material fact in dispute as to whether, if

Hallee could have been located, Maine’s long-arm statute, 14 M.R.S.A. § 704-A,

authorized service in Massachusetts. See Angell, 2012 ME 10, ¶¶ 9, 13, 36 A.3d

922. The long-arm statute in place throughout the two-year limitation period

following Angell’s eighteenth birthday authorized the service of process on an

individual residing in another state if the complaint arose from the individual’s

commission of a tortious act in Maine. See 14 M.R.S.A. § 704-A(2)(B), (3).8

     8
         In relevant part, the statute provided,

               2. Causes of action. Any person, whether or not a citizen or resident of this State,
            who in person or through an agent does any of the acts hereinafter enumerated in this
            section, thereby submits such person . . . to the jurisdiction of the courts of this State as to
            any cause of action arising from the doing of any such acts:

                ....
                                                                                               11

       [¶20]      The question then is whether Hallee has satisfied his burden to

demonstrate, without any disputes of material fact, that Angell, through reasonable

effort, could have found and served him by any means other than publication. See

Angell, 2012 ME 10, ¶¶ 9-10, 36 A.3d 922; see also Patten v. Milam, 480 A.2d

774, 777 (Me. 1984) (holding that a court determines whether a defendant is

“amenable to service” pursuant to a long-arm statute based on whether the

defendant’s whereabouts are “known or reasonably could have been known to [the]

plaintiff”). To answer this question, we must first determine whether the factual

record, viewed in the light most favorable to Angell, demonstrates any disputes of

material fact.

       [¶21] We conclude that the material facts are not in dispute. In essence,

Angell asserts that she did not know where Hallee was, which Hallee does not

dispute. Angell concedes that she made no effort to find Hallee during the two

years following her eighteenth birthday. Hallee does not dispute that he was living




           B. Doing or causing a tortious act to be done, or causing the consequences of a
           tortious act to occur within this State;

           ....

           3. Personal service. Service of process upon any person who is subject to the
       jurisdiction of the courts of this State, as provided in this section, may be made by
       personally serving the summons upon the defendant outside this State, with the same
       force and effect as though summons had been personally served within this State.

14 M.R.S.A. § 704-A.
12

outside of Maine, but he asserts unopposed facts demonstrating that he was living

an open life working in a public school and could readily have been served had

Angell located him.

      [¶22] Based on these undisputed facts, the question reduces to this: on the

record presented, applying an objective standard, has Hallee demonstrated that

Angell could have located him through reasonable effort, using the sources of

information identified in the summary judgment proceedings. We conclude on this

record that, although she did not attempt do so, Angell could have obtained

information about Hallee’s whereabouts through reasonable effort. Even though

Angell did not know Hallee’s full name, she knew where and when he had been a

priest. A news release from the Diocese announced Hallee’s move to Fort Kent.

Two local newspapers reported on this transfer, identifying Hallee by name, and

one of them also included a photograph of Hallee. The Diocese knew where

Hallee was and kept up with his residences even after he left the church. Hallee

communicated by letters with the Diocese, and the Diocese was either aware of his

location or able to obtain information about his location during the two years after

Angell turned eighteen. Hallee’s sister was still in Maine and always knew where

he could be located. In Massachusetts, Hallee’s name appeared in the Somerville

list of residents in both 1980 and 1981, and he was working for a public school

system.
                                                                               13

      [¶23] We are not persuaded by Angell’s argument that, had she tried to

locate Hallee, the Diocese would not have cooperated with her.        Even if the

Diocese had not been cooperative initially, Angell could have filed her claims

against the Diocese and Hallee within the two-year limitation period following her

eighteenth birthday and, through discovery, obtained information about Hallee’s

location for purposes of serving him with process. This reasonable effort would

certainly have yielded the information necessary to serve Hallee through a means

other than publication.

      [¶24]    On the record presented on summary judgment, Hallee has

established, without dispute of material facts, that he was amenable to service

because he was subject to service under a long-arm extension of personal

jurisdiction, see 14 M.R.S.A. § 704-A, and could, through reasonable effort, have

been found and served by means other than publication, see Angell, 2012 ME 10,

¶¶ 9-10, 36 A.3d 922, during the two-year period following Angell’s eighteenth

birthday. Accordingly, the limitation period expired before any amendments that

lengthened the statute of limitations became effective, and Angell failed to

commence her lawsuit in a timely manner. See Morrissette, 2003 ME 138, ¶ 15,

837 A.2d 123. The court appropriately entered summary judgment in favor of

Hallee.
14

        The entry is:

                           Judgment affirmed.



On the briefs:

        Sumner H. Lipman, Esq., and James T. Lawley, Esq., Lipman
        & Katz, P.A., Augusta, for appellant Christine S. Angell

        Russell B. Pierce, Jr., Esq., Norman, Hanson & DeTroy, LLC,
        Portland, for appellee Renald C. Hallee


At oral argument:

        James T. Lawley, Esq., for appellant Christine S. Angell

        Russell B. Pierce, Jr., Esq., for appellee Renald C. Hallee




Cumberland County Superior Court docket number CV-2010-132
FOR CLERK REFERENCE ONLY
