Cohane v. The Home Missioners of Am.

• Court: Court of Appeals of North Carolina
• Decided: September 12, 2023
• Docket: 22-143
• Status: Published

Opinion

IN THE COURT OF APPEALS OF NORTH CAROLINA

No. COA22-143

Filed 12 September 2023

Mecklenburg County, No. 21CVS10855

GREGORY COHANE, Plaintiff,

v.

THE HOME MISSIONERS OF AMERICA d/b/a GLENMARY HOME MISSIONERS, ROMAN CATHOLIC DIOCESE OF CHARLOTTE, NC, AND AL BEHM, Defendants.

Appeal by plaintiff from order entered 27 October 2021 by Judge Daniel A.

Kuehnert in Mecklenburg County Superior Court. Heard in the Court of Appeals 6

June 2023.

White & Stradley, PLLC, by Leto Copeley and J. David Stradley, for plaintiff- appellant.

Poyner & Spruill, LLP, by Steven B. Epstein, for defendant-appellee The Home Missioners of America, et al.

Troutman Pepper Hamilton Sanders, LLP, by Joshua D. Davey and Mary K. Grob, for defendant-appellee Roman Catholic Diocese of Charlotte, NC.

Attorney General Joshua H. Stein, by Special Deputy Attorney General Orlando L. Rodriguez, for the North Carolina Attorney General’s Office, amicus curiae.

Tin, Fulton, Owen, & Walker, by Sam McGee, for Child USA, amicus curiae.

Skye Alexandria David, for the North Carolina Coalition Against Sexual Assault, amicus curiae.

GORE, Judge.

Plaintiff, Gregory Cohane, appeals the trial court’s interlocutory Order

Denying in Part and Granting in Part Defendants’ Motions to Dismiss and Denying COHANE V. THE HOME MISSIONERS OF AM.

Opinion of the Court

as Moot Plaintiff’s Motion to Transfer. The trial court certified the Order as a final

judgment pursuant to Rule 54(b), as it determined there was “no just reason for delay

in entry of final judgment on Plaintiff’s claims against [defendant] Glenmary and

[defendant] the Diocese.” Upon review of the parties’ briefs and the record, we reverse

and remand for further proceedings.

I.

In 1972, defendant Al Behm met plaintiff while Behm was assigned by

defendant, Glenmary Home Missioners (“Glenmary”), to a Roman Catholic parish in

Connecticut. Behm befriended plaintiff, who was nine years old at the time, and

became his “loving, kind and supportive adult presence” compared to plaintiff’s

emotionally and verbally abusive parents. Behm regularly visited plaintiff’s home

and eventually invited plaintiff for overnight stays and for overnight trips, which

plaintiff’s parents consented to. During these times, Behm began grooming plaintiff.

Glenmary reassigned Behm to a parish in Kentucky but Behm maintained

connection with plaintiff through mail and phone calls. While in Kentucky, Behm

was accused of child sexual abuse, but this was never reported to authorities; instead,

Behm was transferred to Cincinnati. While Behm pursued a degree in human

sexuality, financed by Glenmary, Behm invited plaintiff and a friend to visit. During

this visit, Behm performed sexual acts on plaintiff. Behm was later assigned by

Glenmary and defendant Roman Catholic Diocese of Charlotte (“Diocese”) to be the

campus clergy at Western Carolina University (“WCU”) campus. Glenmary and the

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Diocese did not give any information about the prior child sexual abuse allegations to

staff at WCU. Behm continued to sexually abuse plaintiff through phone calls and

overnight visits to North Carolina. Behm introduced plaintiff to alcohol, marijuana,

and amyl nitrates, and convinced both plaintiff and his parents that plaintiff should

go to college at WCU.

While plaintiff attended WCU, Behm continued to sexually abuse him. During

this time, Behm was required to travel to a “support group” to meet with other

Glenmary clergy who had been accused of child sexual abuse but were still employed.

In 1983, according to plaintiff, the Diocese reassigned Behm to Tennessee because of

his sexual misconduct with plaintiff. In Tennessee, Behm was accused yet again of

child sexual abuse.

On 6 July 2021, plaintiff filed this lawsuit at the age of 57, in reliance upon the

passage of Session Law 2019-245 (the “SAFE Child Act”), and specifically, the revival

provision in section 4.2(b) of the Act that revived previous civil claims for child sexual

abuse barred by the statute of limitations in Section 1-52. Plaintiff brought civil

claims against Glenmary and the Diocese for negligence, negligent assignment,

supervision, and retention. Plaintiff brought civil claims against Behm for assault,

battery, negligent infliction of emotional distress, and intentional infliction of

emotional distress. Glenmary and the Diocese filed motions to dismiss and amended

motions to dismiss under Rules 12(b)(1), 12(b)(6) and 9(k). They specifically argued

plaintiff’s claims were time-barred because the SAFE Child Act did not apply to these

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claims. Plaintiff filed a motion to transfer the 12(b)(6) motions to a three-judge panel

because defendants also facially challenged the constitutional validity of the revival

provision.

The trial court set the motions to dismiss for hearing on 27 September 2021.

The trial court determined plaintiff’s claims did not fall within the revival provision’s

scope. Accordingly, the trial court granted defendants’ motions to dismiss in part

because it determined plaintiff’s claims were time-barred, denied defendants’ motion

to dismiss in part for lack of subject matter jurisdiction, and denied plaintiff’s motion

to transfer as moot. Further the trial court certified the order as final for defendants

Glenmary and the Diocese pursuant to Rule 54(b). Plaintiff timely appealed this

order.

II.

Plaintiff appeals of right pursuant to N.C. R. Civ. P. 54(b) and section 7A-27(b).

Plaintiff argues the trial court erred by granting the Rule 12(b)(6) motions on the

basis plaintiff’s claims are time-barred by section 1-52. Plaintiff argues the trial court

erroneously interpreted section 4.2(b), within the SAFE Child Act, narrowly to

exclude claims for negligence, negligent retention, assignment, and supervision. We

agree.

We review challenges to Rule 12(b)(6) motions to dismiss de novo. Hinson v.

City of Greensboro, 232 N.C. App. 204, 208, 753 S.E.2d 822, 826 (2014). “Issues of

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statutory interpretation are also subject to [de novo] review.” Swauger v. Univ. of

N.C. at Charlotte, 259 N.C. App. 727, 728, 817 S.E.2d 434, 435 (2018).

In November 2019, the General Assembly unanimously adopted the SAFE

Child Act, which was signed into law by Governor Cooper, to protect children from

sexual abuse and to strengthen and modernize sexual assault laws. SAFE Child Act,

2019 N.C. Sess. Laws 1231, ch. 245 (2019). Within the Act, the General Assembly

included a part to “Extend Civil Statute of Limitations and Require Training” in

which it amended sections 1-17 and 1-52 of the North Carolina General Statutes.

2019 N.C. Sess. Laws 1231, 1234–35, ch. 245. It amended section 1-17 to include the

following provision: “(d) Notwithstanding the provisions of subsections (a), (b), (c),

and (e) of this section, a plaintiff may file a civil action against a defendant for claims

related to sexual abuse suffered while the plaintiff was under 18 years of age until

the plaintiff attains 28 years of age.” 2019 N.C. Sess. Laws 1231, 1234, ch. 245, sec.

4.1(d). Within its amendment to section 1-52, it included the following provision,

“Effective from January 1, 2020, until December 31, 2021, this section revives any

civil action for child sexual abuse otherwise time-barred under G.S. 1-52 as it existed

immediately before the enactment of this act.” 2019 N.C. Sess. Laws 1231, 1235, ch.

245, sec. 4.2(b).

Plaintiff initiated his lawsuit within the window of time set by section 4.2(b)

with claims of negligence, negligent supervision, assignment, and retention against

Glenmary and the Diocese. The trial court granted defendants’ motions to dismiss

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because it determined plaintiff’s lawsuit was time-barred under section 1-52. It

reasoned the phrase “any civil action for child sexual abuse” only included claims

against the perpetrator of the sexual abuse, and therefore, the claims brought against

Glenmary and the Diocese fell outside the scope of section 4.2(b). It determined this

phrase was “narrow and limited” due to the “broader language” within section 4.1(d)

that states “a plaintiff may file a civil action against a defendant for claims related to

sexual abuse.” The trial court made this comparison to ascertain the intent of the

legislature. In essence, the trial court narrowed the scope of section 4.2(b) through

its comparison of the words “related to” and “for,” because it determined the differing

language in each provision represented legislative intent.

Our Supreme Court applies the following rules to interpret statutes:

In construing this statutory language, we are guided by long-standing rules of statutory interpretation. First, if a statute is clear and unambiguous, no construction of the legislative intent is required and the words are applied in their normal and usual meaning. However, when the language of a statute is ambiguous, this Court will determine the purpose of the statute and the intent of the legislature in its enactment. Additionally, if a statute is remedial in nature, seeking to advance the remedy and repress the evil it must be liberally construed to effectuate the intent of the legislature.

Misenheimer v. Burris, 360 N.C. 620, 623, 637 S.E.2d 173, 175 (2006) (cleaned up).

We recently addressed this revival statutory provision in Doe v. Roman

Catholic Diocese of Charlotte. 283 N.C. App. 177, 872 S.E.2d 810 (2022) (“Doe 2022”).

The plaintiff had previously filed a lawsuit in 2011 against the Diocese alleging the

following claims: constructive fraud, breach of fiduciary duty, fraud and fraudulent

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concealment, negligent supervision and retention, civil conspiracy, negligent

infliction of emotional distress, intentional infliction of emotional distress, and

equitable estoppel. Id. at 178, 872 S.E.2d at 812.1 These claims were time-barred

under the statute of limitations. Doe 2015, 242 N.C. App. at 545, 775 S.E.2d at 923.

In Doe 2022, plaintiff filed the second lawsuit against the Diocese after the passage

of the SAFE Child Act, and in reliance on the section 4.2(b) revival provision. 283

N.C. App. at 178, 872 S.E.2d at 812. The plaintiff asserted the following claims in

the second lawsuit: assault and battery, intentional infliction of emotional distress,

negligence, negligent infliction of emotional distress, breach of fiduciary duty,

constructive fraud, and misrepresentation and fraud. Id.

We ultimately ruled that the plaintiff’s claims were precluded under the

doctrine of res judicata. Id. at 181, 872 S.E.2d at 814. However, we noted in that

case the revival provision “revive[d] only civil actions for child sexual abuse otherwise

time-barred and does not revive civil actions . . . barred by disposition of a previous

action.” Id. at 180, 872 S.E.2d at 813. We also suggested in dicta that plaintiff’s

claims would have been viable under the revival provision if not for the prejudicial

dismissal in Doe 2015. Id. at 181, 872 S.E.2d at 814.

1 We noted the plaintiff “abandoned” his negligent supervision and retention, civil conspiracy,

negligent infliction of emotional distress, and intentional infliction of emotional distress claims prior to summary judgment. Doe v. Roman Catholic Diocese of Charlotte, NC, 242 N.C. App. 538, 542 n.2, 775 S.E.2d 918, 921 n.2 (2015) (“Doe 2015”).

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We discuss Doe 2015 and Doe 2022 at length, because within these cases lie

the subtle recognition that section 4.2(b) may be interpreted through its plain

language as there is no ambiguity in the legislature’s word usage. Nor does the

language “related to” and “for” need to be distinguished. The trial court appears to

have bypassed the plain language of the statute, and immediately sought to discern

legislative intent through the use of pari materia foregoing the “longstanding rules of

statutory interpretation.” Misenheimer, 360 N.C. at 623, 637 S.E.2d at 175. In so

doing, the trial court had to add language to the revival provision to make the

provision fit within its opinion of the legislature’s intent. Treading beyond the well-

trodden path of methodical statutory interpretation is what leads to such tortured

results, which are unnecessary when the plain language provides the courts with

direction.

The legislature marked out the broad nature of section 4.2(b) by using the term

“any” as a modifier of civil action, and including section 1-52, which includes the civil

claims raised by plaintiff. The only limit, based upon the plain language, is that the

civil actions concern child sexual abuse allegations. Interpreting section 4.2(b) in this

manner does not detract from the language in section 4.1(d). Had the legislature

intended to limit the revival provision to torts by the perpetrator, as defendants

suggest, the legislature could have specified the subsections within section 1-52, but

it did not specify any subsections. Accordingly, what was previously suggested in

dicta we now hold, that the plain language of section 4.2(b) includes the civil claims

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brought by plaintiff for his childhood sexual abuse allegations. Therefore, the trial

court erred by interpreting section 4.2(b) narrowly and dismissing plaintiff’s claims

as outside the scope of the revival provision.

Defendants also raise issues of constitutionality and that the claims were

alternatively dismissed for failure to state a claim upon which relief may be granted.

We decline to consider these issues, as we only address the issues raised by plaintiff

on appeal and expressly determined by the trial court.

III.

For the foregoing reasons, we conclude the trial court erred in dismissing

plaintiff’s claims with prejudice on the basis they were not revived by section 4.2(b)

and were therefore time-barred. Accordingly, we reverse the trial court’s order

granting defendant’s motions for failure to file a complaint within the statutory

limitations and denying as moot plaintiff’s motion to transfer.

REVERSED AND REMANDED.

Judge RIGGS concurs.

Judge CARPENTER dissents by separate opinion.

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CARPENTER, Judge, dissenting.

I respectfully dissent from the Majority’s opinion. For the same reasons I

detailed in my dissent in McKinney v. Goins, COA22-261, ___ N.C. App. ___, ___

S.E.2d ___ (2023), I believe the Revival Window of the SAFE Child Act is

unconstitutional. Thus, regardless of the asserted scope of the Window, I believe the

lower court appropriately dismissed this case. Therefore, I respectfully dissent.