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Smith v. Estate of Kelly

August 08, 2001

JAMES J. SMITH AND SANDRA SMITH; JOHN F. SMITH; ELIZABETH A. GORMAN; ALFIA M. HAYES; TERRENCE M. SMITH; T.S.; STEVEN M. STOLAR; STEVEN STOLAR; M.D.; J.F.D.; F.W.D.; R.M.B.; R.B.; MARGARET STANTON; DIANE FETTERS-MURPHY; KATHLEEN S. PALMER; ROXANNE J. ANGELL AND TROY A. ANGELL; THOMAS MARSHALL; G.M.M.; PETER D. PFISTER AND DOROTHY PFISTER; R.I.N. AND L.N.; STEPHEN M. JOHNSON; A.G.P.; G.P.; ROSEANN PICCIONI; DENISE BARCUS, INDIVIDUALLY AND AS NATURAL GUARDIAN FOR W.B., A MINOR; M.L., INDIVIDUALLY, AND AS PARENT AND NATURAL GUARDIAN FOR M.M., A MINOR; LINDA HEGARTY, INDIVIDUALLY, AND AS PARENT AND NATURAL GUARDIAN FOR E.H., A MINOR; CHRISTINE PITTMAN, INDIVIDUALLY, AND AS PARENT AND NATURAL GUARDIAN FOR S.P., A MINOR; STEPHEN GANDY; ROBERT YOUNG; PHILIP YOUNG; JOAN DOUGHERTY; AND GARY MAUGER, PLAINTIFFS, AND MELISSA MARSHALL, PLAINTIFF-APPELLANT
v.
ESTATE OF REV. JOHN P. KELLY, INDIVIDUALLY; OUR LADY STAR OF THE SEA ROMAN CATHOLIC CHURCH, A RELIGIOUS CORPORATION; REV. MSGR. JOSEPH A. VON HARTLEBEN, INDIVIDUALLY; REV. FRANCIS GAFFNEY, INDIVIDUALLY; REV. JOSEPH MARTELLI, INDIVIDUALLY; CATHOLIC CHARITIES OF THE DIOCESE OF CAMDEN, A RELIGIOUS CORPORATION; MSGR. TIMOTHY A. RYAN, INDIVIDUALLY; MARYANNE CANALE, INDIVIDUALLY; MSGR. WILLIAM J. REYNOLDS, INDIVIDUALLY; ST. RAYMOND ROMAN CATHOLIC CHURCH, A RELIGIOUS CORPORATION; REV. MSGR. JOSEPH W. POKUSA, INDIVIDUALLY; ESTATE OF REV. MSGR. AUGUSTINE T. MOZIER, INDIVIDUALLY; ESTATE OF BISHOP CELESTINE J. DAMIANO, INDIVIDUALLY; ESTATE OF BISHOP GEORGE H. GUILFOYLE, INDIVIDUALLY; BISHOP JAMES L. SCHAD, INDIVIDUALLY; BISHOP JAMES T. MCHUGH, INDIVIDUALLY; AND DIOCESE OF CAMDEN, A RELIGIOUS CORPORATION, DEFENDANTS-RESPONDENTS, AND REV. JAMES P. MCINTYRE, INDIVIDUALLY; ESTATE OF REV. MSGR. DENNIS J. RIGNEY, INDIVIDUALLY; ESTATE OF REV. FRANCIS J. FLEMMING, INDIVIDUALLY; REV. MSGR. PHILIP T. RIGNEY, INDIVIDUALLY; REV. MSGR. GLENDON E. ROBERTSON, INDIVIDUALLY; ST. PIUS X, A RELIGIOUS CORPORATION; ESTATE OF JOSEPH P. BARBER, INDIVIDUALLY; OUR LADY OF MT. CARMEL, A RELIGIOUS CORPORATION; REV. WILLIAM C. O'CONNELL, INDIVIDUALLY; REV. NORMAN T. CONNELLY, INDIVIDUALLY; ESTATE OF REV. CHARLES P. MCCOLGAN, INDIVIDUALLY; ST. PETER ROMAN CATHOLIC CHURCH, A RELIGIOUS CORPORATION; REV. JOSEPH SHANNON, INDIVIDUALLY; REV. MSGR. AUGUSTINE J. SEIDENBERG, INDIVIDUALLY; ST. THOMAS ROMAN CATHOLIC CHURCH, A RELIGIOUS CORPORATION; BRIAN MAI, INDIVIDUALLY; SISTER FRANCES REGIS, INDIVIDUALLY; CAROLYN J. NOONAN AND WALTER J. NOONAN, SR., INDIVIDUALLY; REV. WILLIAM TITMAS, INDIVIDUALLY; REV. JOHN P. BERNARD, INDIVIDUALLY; ST. GREGORY ROMAN CATHOLIC CHURCH, A RELIGIOUS CORPORATION; ST. JOSEPH PRO-CATHEDRAL, A RELIGIOUS CORPORATION; REV. JOSEPH E. ORSINI, INDIVIDUALLY; REV. JOSEPH F. MCGARVEY, INDIVIDUALLY; ST. MARY MAGDALEN, A RELIGIOUS CORPORATION; CHURCH OF ST. MARIA GORETTI, A RELIGIOUS CORPORATION; REV. PATRICK WEAVER, INDIVIDUALLY; ST. JOAN OF ARC, A RELIGIOUS CORPORATION; ST. JOHN, COLLINGSWOOD, A RELIGIOUS CORPORATION; ST. FRANCIS DE SALES, A RELIGIOUS CORPORATION; NATIONAL CATHOLIC CONFERENCE OF BISHOPS; UNITED STATES CATHOLIC CONFERENCE, INCORPORATED; ARCHDIOCESE FOR THE MILITARY SERVICES, UNITED STATES OF AMERICA; MILITARY VICARIATE, UNITED STATES OF AMERICA, A NEW YORK RELIGIOUS CORPORATION; MILITARY VICARIATE UNITED STATES OF AMERICA; BISHOP LOUIS GELINEAU, INDIVIDUALLY; BISHOP KENNETH A. ANGELL, INDIVIDUALLY; ST. MARY'S CHURCH, BRISTOL, A RELIGIOUS CORPORATION; AND THE ROMAN CATHOLIC BISHOP OF PROVIDENCE, A CORPORATION SOLE, DEFENDANTS



On appeal from Superior Court of New Jersey, Law Division, Atlantic County, L-4059-94.

Before Judges Havey, Cuff and Lisa.

The opinion of the court was delivered by: Lisa, J.A.D.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued April 2, 2001

In this appeal we consider only the case of plaintiff, Melissa Marshall *fn1 (plaintiff). She is one of many plaintiffs who have brought this class action *fn2 against numerous entities and clergy of the Roman Catholic Church (defendants). The putative class of plaintiffs are Roman Catholics who were allegedly sexually assaulted by Roman Catholic priests in the Diocese of Camden (Diocese) and the Diocese of Providence, Rhode Island. Plaintiff, however, was not abused by a priest. She alleges she was abused by her father, defendant, Walter Noonan (Noonan), but she also makes claims against defendants because they allegedly failed to address the abuse or assist her when she reported it to them.

Noonan's abuse of plaintiff occurred over a one-year period when she was approximately thirteen-years-old. She first reported it to one of the defendants at age fourteen in 1983. She last reported it to the defendants in 1987, at age seventeen. She filed this complaint on October 31, 1994, approximately seven-and-one- half years after reaching age eighteen. Plaintiff appeals from a summary judgment dismissing her complaint because it was barred by the statute of limitations, rejecting her claim that the religious duress of the defendants should have tolled the statute's running.*fn3 The applicable limitation period is two years from accrual of the cause of action,*fn4 N.J.S.A. 2A:14-2, or from age eighteen if accrual occurred during minority. N.J.S.A. 2A:14-21; Green v. Auerbach Chevrolet Corp., 127 N.J. 591 (1992).

Plaintiff also appeals from ten interlocutory orders culminating in the summary judgment order.

Plaintiff argues on appeal that the trial judge erred in granting summary judgment because genuine issues of material fact were in dispute, thereby necessitating a plenary hearing on the issue of tolling; in barring the testimony of her expert witnesses; in dismissing various other claims against defendants prior to his ruling on the summary judgment; and in refusing to recuse himself. We reject these arguments and affirm.

Plaintiff has sued her former parish, several priests in the parish, a nun, a high-school teacher and principal, Catholic Social Services (CSS)*fn5 and the Diocese of Camden. We are satisfied from our review of the record that summary judgment was appropriate because no reasonable factfinder could find that religious duress precluded plaintiff from filing this action against defendants until October 1994. Further, even if plaintiff's assertion is accepted that defendants failed to protect her or attempted to prevent her from taking action against Noonan, the principles of duress require proof that defendants attempted to prevent her from taking action against them. The record lacks such evidence.

I.

Considering the evidentiary material in a light most favorable to plaintiff, see Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520 (1995), these are the facts.

On May 15, 1969, plaintiff was born into a Roman Catholic family, which belonged to The Most Holy Redeemer parish in Westville Grove. Her mother was a substitute teacher at the parish school. Plaintiff was baptized as an infant and made her first penance, first holy communion, and confirmation at The Most Holy Redeemer parish. She was educated in Catholic schools, attended Mass regularly, and was married in the Roman Catholic Church. She "learned to respect priests as direct messengers of God." She "developed great admiration, trust, reverence and respect for and obedience to Roman Catholic priests, who occupied positions of tremendous influence and persuasion as dominant authority figures in [her] life."

When Noonan "regularly and repeatedly sexually molested and abused" her, for approximately one year, plaintiff knew what her father was doing to her was wrong, as evidenced by her deposition testimony:

Q: Did you know the first time that your father did something to you that had a sexual overtone that what he was doing was wrong?

A: Yes, I did.

Q: Could you tell us what the act was?

A: . . . [H]e had reached up under my top and started fondling my breasts.

Q: And that was the first time?

A: Yes.

Q: Now, when he did that the first time, did you know that was wrong?

A: Yes.

Q: Every time it happened, did you know it was wrong?

A: Yes.

Q: And every time it happened, did it bother you?

A: Yes, it did.

Q: And when I say bothered you, could you tell us how it bothered you?

A: I was upset. I was – I was upset. I was afraid. I felt I was ...


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