Doe BF v. Diocese of Gallup

10 Am. Tribal Law 72
CourtNavajo Nation Supreme Court
DecidedSeptember 9, 2011
DocketNo. SC-CV-06-10
StatusPublished
Cited by1 cases

This text of 10 Am. Tribal Law 72 (Doe BF v. Diocese of Gallup) is published on Counsel Stack Legal Research, covering Navajo Nation Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Doe BF v. Diocese of Gallup, 10 Am. Tribal Law 72 (navajo 2011).

Opinion

OPINION

John Doe BF (Appellant) appeals the Shiprock District Court’s January 19, 2010 dismissal of his Second Amended Complaint for Personal Injury for damages resulting from injuries arising from sexual abuse that occurred in 1984-85 when Appellant was 14-15 years old. Defendants are non-members of the Navajo Nation. For the following reasons, we reverse the district court’s order of dismissal and remand the case.

[76]*76I. PROCEDURAL HISTORY

Appellant filed a Complaint for Personal Injuries against defendant Charles Cieha-nowicz (“Ciehanowicz”) on November 6, 2007, shortly thereafter on November 13, 2007 filing a First Amended Complaint, alleging damages resulting from negligence and other misconduct arising from 2 incidents of sexual abuse in 1984-85 when Appellant was a teenager and Ciehanowicz was his parish priest. In addition to Ci-chanowicz, Appellant named as defendants the Diocese of Gallup (“Diocese”), the Franciscan Friars of St. John the Baptist a/k/a the Franciscan Missionary Union of the Province of St. John the Baptist (“Baptist Order”) and Franciscan Friars Province of Our Lady of Guadalupe a/k/a the Province of Our Lady of Guadalupe of the Order of Friars Minor, Inc. (“Guadalupe Order”). Appellant alleged that during the dates of the abuse, the above entities directly supervised, employed and controlled Ciehanowicz, and that the abuse occurred on premises within the Diocese that was successively owned and operated by the Baptist Order and Guadalupe Order. All the defendants named in the complaint are collectively Appellees in this appeal.

Appellant alleged that as a 14-15 year old child, he had been sexually molested by Ciehanowicz “on the Navajo reservation” after being given alcohol by Ciehanowicz, who was then his priest. Following the incidents, Appellant alleged that Cieha-nowicz threatened him with exposure if he told anyone about the abuse. Appellant asserts that the Diocese, Baptist Order and Guadalupe Order aided and encouraged Ciehanowicz in the abuse by transferring him when he was caught sexually abusing children, continuing to assign him to parishes with unsupervised access to children, failing to report his wrongful conduct to authorities and the public, and in having no system in place to supervise priests, such as Ciehanowicz, to ensure that no minors were abused in their care.

Appellant did not file his complaint until more than twenty years had passed after the alleged abuse occurred. Explaining the delay, Appellant claimed that until May 2007, he did not discover that he had been injured by the abuse, the injuries did not manifest themselves in a psychological and objective manner and were not ascertainable to him, and due to the nature of the injuries, it was not possible for him to connect the symptoms and injuries to the acts of abuse before then. Appellant further alleged that he had developed “various psychological coping mechanisms” which prevented him from filing his complaint prior to May 2007. Finally, he asserted that he suffers great pain of mind and body that has affected his enjoyment of life and earning capacity, and incurs expenses for medical and psychological treatment, therapy and counseling.

Appellant served interrogatories on the Appellees, none of whom responded. Answers were filed by all Appellees except Ciehanowicz. On March 20, 2008, Cieha-nowicz filed a Motion to Dismiss pursuant to the Navajo Rules of Civil Procedure, arguing under Rule 12(b)(1) that the Shi-prock District Court lacked jurisdiction to hear the case involving him as a nonmember defendant because Appellant had failed to plead sufficient facts to establish jurisdiction under both Navajo Nation law and the test for civil jurisdiction provided under Montana v. United States, 450 U.S. 544, 564-65, 101 S.Ct. 1245, 67 L.Ed.2d 493 (1980) and its progeny. Alternatively, Ci-chanowicz argued under Rule 12(b)(6) that the claim was barred by the statute of limitations under 7 N.N.C. § 602(A)(2) which requires a personal injury action to be filed within two years from the date Appellant discovered or should have dis[77]*77covered the nature, cause, and identity of the person causing the injury. Appellant was permitted to amend his complaint and he filed his Second Amended Complaint on January 21, 2009 to include a statement of Appellant’s Navajo Nation enrollment status. Cichanowicz renewed his motion to dismiss on July 13, 2009. On August 24, 2009, both the Baptist Order and the Guadalupe Order joined in the Motion and further moved for a protective order and stay of discovery.

On September 1, 2009, the district court scheduled a Status Hearing for September 22, 2009 and sent a notice advising counsel: “As counsels of record, you and each of you are required to notify your clients and be present at the time set with such evidence and witnesses as may be necessary for the hearing of said cause of action.” Appellant filed an opposition to Cichanow-icz’s motion to dismiss on September 10, 2009 and to the motions of the remaining defendants on September 14, 2009. Replies were filed by Guadalupe Order and Baptist Order jointly on September 21, 2009 and by Cichanowicz on September 22, 2009, the day of the status conference. That same day, Appellant filed an affidavit and various journal articles on childhood sexual abuse.

At the status conference, the parties were asked if they were ready to argue the submitted motions and proceeded to do so. Following the hearing, Appellant filed a motion to amend his Second Amended Complaint. Without ruling on this Motion, the district court issued an Order to Dismiss on January 19, 2010. The district court found jurisdiction over the defendants on the basis of the Treaty of 1868, but ordered dismissal upon determining that Appellant had failed to file his action within the required statute of limitations period. The district court stated that it had specifically asked Appellant “to bring in witnesses or psychological professionals to support his assertions concerning the time and significance of his insight of 2007” but Appellant “did not present any testimony or evidence other than what he himself stated” and “did not even appear himself to give the Court an explanation.” Order to Dismiss, ¶ 13. The district court then stated that “[a] mental assertion is not sufficient to establish by a preponderance of evidence that the discovery of the nature or cause of an injury, particularly when ... the injury asserted is limited to emotional and mental consequences.” Id.

Appellant filed a Notice of Appeal on February 11, 2010. Briefs were timely filed by all parties. Oral argument, originally scheduled for October 25, 2010, was held at the Shiprock Chapter House on June 27, 2011.

II. ISSUES

The following issues are before this Court:

(a) Whether the district court’s determination of jurisdiction is based on sufficient findings;
(b) Whether the district court erred in ordering dismissal pursuant to a Nav. R. Civ. P. Rule 12(b) motion on the basis that, by not presenting witnesses, experts or evidence other than his own sworn affidavit at a status conference, the plaintiff failed to present sufficient evidence to toll the statute of limitations for personal injury actions pursuant to 7 N.N.C. § 602(A)(4).

III. STANDARD OF REVIEW

The Court reviews the trial court’s dismissal under Nav. R. Civ. P. Rule 12(b) de novo

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Bluebook (online)
10 Am. Tribal Law 72, Counsel Stack Legal Research, https://law.counselstack.com/opinion/doe-bf-v-diocese-of-gallup-navajo-2011.