Norman Redwing v. Catholic Bishop for the Diocese of Memphis

IN THE SUPREME COURT OF TENNESSEE

AT JACKSON

April 7, 2011 Session

NORMAN REDWING v. CATHOLIC BISHOP FOR THE

DIOCESE OF MEMPHIS

Appeal by Permission from the Court of Appeals, Middle Section

Circuit Court for Shelby County

No. CT-005052-08 D’Army Bailey, Judge

No. W2009-00986-SC-R11-CV - Filed February 27, 2012

This appeal involves a dispute regarding the civil liability of the Catholic Diocese of

Memphis for acts of child sexual abuse allegedly perpetrated by one of its priests in the

1970s. A victim of this alleged abuse filed suit against the Bishop of the Catholic Diocese

of Memphis in the Circuit Court for Shelby County seeking monetary damages. The Diocese

moved to dismiss the complaint, arguing that the ecclesiastical abstention doctrine deprived

state courts of subject matter jurisdiction and that the victim’s claims were barred by the

statute of limitations. The trial court denied the Diocese’s motion. The Court of Appeals

held that the statute of limitations had run on the victim’s claims and that the ecclesiastical

abstention doctrine barred state courts from considering the victim’s negligent hiring and

retention claims but not the negligent supervision claims. Redwing v. Catholic Bishop for

Diocese of Memphis, No. W2009-00986-COA-R10-CV, 2010 WL 2106222 (Tenn. Ct. App.

May 27, 2010). We granted the victim’s Tenn. R. App. P. 11 application for permission to

appeal. We have concluded that the Court of Appeals erred by concluding that the state

courts lack subject matter jurisdiction over the victim’s claims and that the victim’s claims

are barred by the statute of limitations.

Tenn. R. App. P. 11 Appeal by Permission; Judgment of the Court of Appeals

Reversed

W ILLIAM C. K OCH, J R., J., delivered the opinion of the Court, in which C ORNELIA A. C LARK,

C.J., JANICE M. H OLDER, G ARY R. W ADE, and S HARON G. L EE, JJ., joined.

Gary K. Smith and Karen M. Campbell, Memphis, Tennessee, for the appellant, Norman

Redwing.

John H. Dotson and Casey Shannon, Memphis, Tennessee, for the appellee, Catholic Bishop

for the Diocese of Memphis.

OPINION

I.

The facts in this opinion are drawn from the allegations in the complaint. No trial has

occurred. Neither party has presented evidence, and no facts have been found by a fact-

finder. Because this case comes to us as an appeal from a denial of a motion to dismiss, the

applicable standard of review requires us to presume that the allegations in the complaint are

true. Our decision to include in this opinion any particular factual allegation found in the

complaint should not be construed as a conclusive finding-of-fact that prevents the parties

from presenting evidence regarding the fact or that prevents the trial court or the jury from

making contradictory findings-of-fact based on the evidence actually presented by the parties.

Norman Redwing1 was born in August 1960 and was raised in a Roman Catholic

home. His childhood was turbulent. He was raped by an adult male when he was seven

years old. The trauma remained long after the event, and by the time he was twelve, Mr.

Redwing began to run away from home on a regular basis.

Between 1972 and 1974, Mr. Redwing attended mass regularly at Holy Names

Catholic Church in Memphis. There he came to know Father Milton Guthrie. On the

occasions when Mr. Redwing ran away from home, Fr. Guthrie allowed him to stay at the

church. These acts of kindness caused Mr. Redwing to admire and respect priests in general

and Fr. Guthrie in particular. Mr. Redwing respected Fr. Guthrie not only for his acts of

kindness but also for his involvement in the civil rights movement.

Eventually, Mr. Redwing confided to Fr. Guthrie that he had been raped when he was

seven years old. At first, Fr. Guthrie responded with kindness and understanding. He made

breakfast for Mr. Redwing when he spent the night at the church and gave him pocket money

from time to time. However, after a time, Mr. Redwing alleges that Fr. Guthrie began to take

advantage of him. He states that Fr. Guthrie began to touch him in inappropriate ways and

eventually inveigled him into a physical relationship that included oral sex.

In August 2008, over thirty years after the alleged acts of sexual abuse occurred, Mr.

Redwing filed suit in the Circuit Court for Shelby County against the “Catholic Bishop for

1

Mr. Redwing, who is an adult, has elected to proceed under his name rather than as a pseudonym.

We abide by this decision and refer to Mr. Redwing using his proper name rather than an anonymity-

preserving designation.

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the Diocese of Memphis.”2 He did not name Fr. Guthrie as a defendant based on his

understanding that Fr. Guthrie had died.

Mr. Redwing alleged that the Diocese breached its fiduciary duties and acted

negligently with regard to the hiring, retention, and supervision of Fr. Guthrie. Mr. Redwing

also alleged that the Diocese was aware or should have been aware that Fr. Guthrie was “a

dangerous sexual predator with a depraved sexual interest in young boys” and that the

Diocese misled him and his family regarding its “knowledge of Father Guthrie’s history and

propensity for committing sexual abuse upon minors.” According to Mr. Redwing’s

complaint, “[a]fter finding out about Father Guthrie’s abuse of minors, the Diocese actively

took steps to protect Father Guthrie, conceal the Diocese’s own wrongdoing in supervising

Father Guthrie, and prevent Norman Redwing and other victims of Father Guthrie from filing

civil lawsuits.”

The Diocese denied the allegations in Mr. Redwing’s complaint. On October 22,

2008, the Diocese filed a Tenn. R. Civ. P. 12.02 motion seeking dismissal of the complaint

on two grounds. First, in accordance with Tenn. R. Civ. P. 12.02(1), the Diocese asserted

that the complaint should be dismissed for lack of subject matter jurisdiction based on the

ecclesiastical abstention or church autonomy doctrine.3 Second, in accordance with Tenn.

R. Civ. P. 12.02(6), the Diocese argued that the statute of limitations barred Mr. Redwing’s

complaint. The Diocese noted that three decades had passed since the alleged abuse occurred

and that nearly three decades had passed since the expiration of the statute of limitations.

The Diocese also asserted that neither the discovery rule, fraudulent concealment, nor

equitable estoppel could be used to toll the running of the statute of limitations.

2

Mr. Redwing’s amended complaint identifies the defendant as follows: “Defendant CATHOLIC

BISHOP FOR THE DIOCESE OF MEMPHIS, a corporation sole, (the “Diocese”) is a religious organization

responsible for the interests of the Roman Catholic Church in Western Tennessee.” Based on this statement,

we will refer to the defendant in this case as the “Diocese.”

3

The ecclesiastical abstention doctrine is also known as the church autonomy doctrine. See Two

Rivers Baptist Church v. Sutton, No. M2008-01730-COA-R3-CV, 2010 WL 2025444, at *4 (Tenn. Ct. App.

May 20, 2010) (quoting Anderson v. Watchtower Bible and Tract Soc’y of N.Y., Inc., No.

M2004-01066-COA-R9-CV, 2007 WL 161035, at *4 (Tenn. Ct. App. Jan. 19, 2007)). The origin of the term

church autonomy doctrine as a substitute for the ecclesiastical abstention doctrine has been attributed to a

1981 law review article by Professor Douglas Laycock. Robert Joseph Renaud & Lael Daniel Weinberger,

Spheres of Sovereignty: Church Autonomy Doctrine and the Theological Heritage of the Separation of

Church and State, 35 N. Ky. L. Rev. 67, 88 (2008); see Chad Olsen, Comment, In the Twenty-First Century’s

Marketplace of Ideas, Will Religious Speech Continue to Be Welcome?: Religious Speech as Grounds for

Defamation, 37 Tex. Tech L. Rev. 497, 506 n.98 (2005). For the purpose of this opinion, we will refer to

this doctrine as the “ecclesiastical abstention doctrine.”

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On April 15, 2009, Mr. Redwing filed a memorandum in opposition to the Diocese’s

motion to dismiss. He argued that the ecclesiastical abstention doctrine did not prevent the

state courts from exercising jurisdiction over his complaint. He also asserted that appropriate

grounds exist for tolling the statute of limitations, including fraudulent concealment,

equitable estoppel, and the discovery rule.

The trial court conducted hearings on the Diocese’s motion on April 17 and 20, 2009.

On April 22, 2009, the trial court filed an order denying the motion. The court did not

explain its reasoning with regard to the ecclesiastical abstention doctrine. With regard to the

statute of limitations, the trial court stated that “the record does not establish as a matter of

law that sufficient facts as to defendant’s potential liability could have been known more than

a year prior to the filing of the lawsuit.”

Two days after the entry of the trial court’s order, the Diocese filed motions seeking

permission to pursue an interlocutory appeal pursuant to Tenn. R. App. P. 9 and to stay the

proceedings pending the interlocutory appeal. Mr. Redwing opposed both motions. On May

13, 2009, the trial court filed an order declining to approve an interlocutory appeal or a stay.

Pursuant to Tennessee Rule of Appellate Procedure 10, the Diocese immediately filed

an application for an extraordinary appeal to the Court of Appeals. On May 14, 2009, the

Court of Appeals directed Mr. Redwing to file a response. Mr. Redwing did so. On July 1,

2009, the Court of Appeals granted the Diocese’s Rule 10 application for permission to

appeal and stayed the proceedings in the trial court pending the appeal.

On May 27, 2010, the Court of Appeals handed down Redwing v. Catholic Bishop for

Diocese of Memphis, No. W2009-00986-COA-R10-CV, 2010 WL 2106222 (Tenn. Ct. App.

May 27, 2010). With regard to the Diocese’s defense predicated on the ecclesiastical

abstention doctrine, the court drew a distinction between Mr. Redwing’s negligent

supervision claim and his negligent hiring and retention claims and held unanimously that

the latter claims were barred by the ecclesiastical abstention doctrine but that the former

claim was not. The Court of Appeals did not separately address Mr. Redwing’s breach of

fiduciary duty claim.

The Court of Appeals split, however, with regard to the Bishop’s statute of limitations

defense. The majority of the panel concluded that Mr. Redwing was on inquiry notice when

he reached the age of majority because he knew he had been abused, he knew who his abuser

was, and he knew that his abuser was employed by the Diocese. Redwing v. Catholic Bishop

for Diocese of Memphis, 2010 WL 2106222, at *7. The majority decided that Mr. Redwing’s

“conclusory allegation that he exercised reasonable care and diligence is not sufficient to

prevent dismissal of the complaint as time-barred [because] the rest of the complaint belies

the allegation.” Redwing v. Catholic Bishop for Diocese of Memphis, 2010 WL 2106222,

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at *7. In the majority’s view, if Mr. Redwing had filed suit when he reached eighteen years

of age, “discovery in that case would have ‘provided a mechanism for [him] to learn that the

Diocese had been negligent.’” Redwing v. Catholic Bishop for Diocese of Memphis, 2010

WL 2106222, at *7 (quoting Doe v. Catholic Bishop for Diocese of Memphis, 306 S.W.3d

712, 730 (Tenn. Ct. App. 2008)).

In her dissenting opinion, Judge Kirby concluded that the majority’s dismissal of Mr.

Redwing’s claims was premature in the context of an appeal of a motion to dismiss. Redwing

v. Catholic Bishop for Diocese of Memphis, 2010 WL 2106222, at *10. Judge Kirby noted

that Mr. Redwing had alleged in his complaint that the Diocese had undertaken to conceal

its wrongdoing and that the Diocese had misled Mr. Redwing. Redwing v. Catholic Bishop

for Diocese of Memphis, 2010 WL 2106222, at *8. Judge Kirby also concluded that Mr.

Redwing was not on inquiry notice with regard to the Diocese’s wrongdoing and that even

if Mr. Redwing had promptly filed a lawsuit that he likely would not have discovered the

Diocese’s involvement. Redwing v. Catholic Bishop for Diocese of Memphis, 2010 WL

2106222, at *9.

Mr. Redwing filed a Tenn. R. App. P. 11 application for permission to appeal on July

26, 2010. We granted his application on December 7, 2010. Mr. Redwing insists that the

trial court possesses subject matter jurisdiction to adjudicate his breach of fiduciary duty

claim, as well as his claims for negligent hiring, supervision, and retention. He also insists

that the Court of Appeals erred by holding that his claims were time-barred. For its part, the

Diocese asserts that the trial court lacks subject matter jurisdiction over any of Mr.

Redwing’s claims and that the Court of Appeals correctly found that Mr. Redwing’s claims

were barred by the statute of limitations.

Accordingly, this case squarely presents two issues. The first issue is whether,

pursuant to the ecclesiastical abstention doctrine, Tennessee’s courts should decline to

adjudicate Mr. Redwing’s claims for breach of fiduciary duty and for negligent hiring,

supervision, and retention against the Diocese. If Tennessee’s courts possess subject matter

jurisdiction to adjudicate all or any of these claims, the second issue is whether Mr.

Redwing’s claims are barred by the statute of limitations.

II.

We turn first to the Diocese’s facial challenge to the subject matter jurisdiction of

Tennessee’s courts to adjudicate Mr. Redwing’s claims. The Diocese asserts that the

ecclesiastical abstention doctrine requires state courts to refrain from adjudicating issues

involving theological or spiritual judgment or the internal governance of religious

institutions. Mr. Redwing responds that this Court should not permit the Diocese to use the

ecclesiastical abstention doctrine to “avoid accountability for the particularly egregious

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breach of trust of sexual abuse by clergy” and that adjudicating his claims will not require

the courts to become excessively entangled in religious doctrine. While the correct path

between the secular and the religious is narrow, we have determined that Tennessee’s courts

may adjudicate Mr. Redwing’s claims without straying into areas that are properly within the

Diocese’s exclusive domain.

A.

A motion to dismiss for lack of subject matter jurisdiction falls within the purview of

Tenn. R. Civ. P. 12.02(1). Challenges to a court’s subject matter jurisdiction call into

question the court’s “lawful authority to adjudicate a controversy brought before it,”

Northland Ins. Co. v. State, 33 S.W.3d 727, 729 (Tenn. 2000), and, therefore, should be

viewed as a threshold inquiry. Schmidt v. Catholic Diocese of Biloxi, 2008-CA-00416-SCT

(¶ 13), 18 So. 3d 814, 821 (Miss. 2009). Whenever subject matter jurisdiction is challenged,

the burden is on the plaintiff to demonstrate that the court has jurisdiction to adjudicate the

claim. See Staats v. McKinnon, 206 S.W.3d 532, 543 (Tenn. Ct. App. 2006); 1 Lawrence A.

Pivnick, Tennessee Circuit Court Practice § 3:2 (2011 ed.) (“Pivnick”).4

Litigants may take issue with a court’s subject matter jurisdiction using either a facial

challenge or a factual challenge. See, e.g., Schutte v. Johnson, 337 S.W.3d 767, 769-70

(Tenn. Ct. App. 2010); Staats v. McKinnon, 206 S.W.3d at 542.5 A facial challenge is a

challenge to the complaint itself. See Schutte v. Johnson, 337 S.W.3d at 769. Thus, when

a defendant asserts a facial challenge to a court’s subject matter jurisdiction, the factual

allegations in the plaintiff’s complaint are presumed to be true. See, e.g., Staats v.

McKinnon, 206 S.W.3d at 542-43.

Alternatively, “[a] factual challenge denies that the court actually has subject matter

jurisdiction as a matter of fact even though the complaint alleges facts tending to show

4

Federal courts construing Fed. R. Civ. P. 12(b)(2) likewise place the burden of persuasion on the

plaintiff when subject matter jurisdiction is challenged. See, e.g., Morrison v. Nat’l Austl. Bank, 547 F.3d

167, 170 (2nd Cir. 2008). The Tennessee Rules of Civil Procedure are largely modeled on the Federal Rules

of Civil Procedure. See Thomas v. Oldfield, 279 S.W.3d 259, 262 (Tenn. 2009). While the federal courts’

construction of federal rules analogous to our own is not binding on us, Webb v. Nashville Area Habitat for

Humanity, Inc., 346 S.W.3d 422, 430 (Tenn. 2011) (quoting Harris v. Chern, 33 S.W.3d 741, 745 n.2 (Tenn.

2000)), we may, and often do, look to the federal courts’ interpretation of comparable federal rules for

guidance. See Gordon v. Greenview Hosp., Inc., 300 S.W.3d 635, 643 n.3 (Tenn. 2009); Frazier v. East

Tenn. Baptist Hosp., Inc., 55 S.W.3d 925, 928 (Tenn. 2001); Harris v. Chern, 33 S.W.3d at 745 n.2.

5

Federal courts likewise distinguish between facial challenges and factual challenges to subject

matter jurisdiction. 2 James Wm. Moore et al., Moore’s Federal Practice and Procedure § 12.30[4], at 12-

45 (3d ed. 2009).

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jurisdiction.” Staats v. McKinnon, 206 S.W.3d at 543. Thus, the factual challenge “attacks

the facts serving as the basis for jurisdiction.” Schutte v. Johnson, 337 S.W.3d at 770.6

For the purposes of its motion to dismiss, the Diocese accepted the facts contained in

Mr. Redwing’s amended complaint. The Diocese asserts that, even positing these facts as

true, Tennessee’s courts are without subject matter jurisdiction to adjudicate Mr. Redwing’s

claims. Accordingly, the Diocese’s challenge to the trial court’s subject matter jurisdiction

is facial, not factual. Therefore, the trial court’s decision regarding the existence of subject

matter jurisdiction is a question of law. It follows, therefore, that we will review the lower

courts’ conclusions regarding subject matter jurisdiction without a presumption of

correctness. See Northland Ins. Co. v. State, 33 S.W.3d at 729; see also Schutte v. Johnson,

337 S.W.3d at 769.

B.

The ecclesiastical abstention doctrine recognizes a type of “spiritual federalism.”

Rodney A. Smolla, Words “Which by Their Very Utterance Inflict Injury”: The Evolving

Treatment of Inherently Dangerous Speech in Free Speech Law and Theory, 36 Pepp. L.

Rev. 317, 329 (2009). It reflects the principle that secular courts in the United States should

normally “abstain” from adjudicating issues involving theological or spiritual judgment or

the internal governance of religious bodies and, instead, should leave these matters to

appropriate religious tribunals. Rodney A. Smolla, 1 Rights and Liabilities in Media Content

§ 6:25 (2d ed. 2011).

The birth of the ecclesiastical abstention doctrine has been traced to the United States

Supreme Court’s 1872 decision in Watson v. Jones. Rodney A. Smolla, 1 Law of Defamation

§ 6:74 (2d ed. 2011); Jana R. McCreary, Tell Me No Secrets: Sharing, Discipline, and the

Clash of Ecclesiastical Abstention and Psychotherapeutic Confidentiality, 29 Quinnipiac L.

Rev. 77, 88 (2011). In that case, the United States Supreme Court stated:

In this country[,] . . . [t]he law knows no heresy, and is

committed to the support of no dogma, the establishment of no

sect. The right to organize voluntary religious associations to

assist in the expression and dissemination of any religious

doctrine, and to create tribunals for the decision of controverted

questions of faith within the association, and for the

6

The principles and procedures governing factual challenges to a court’s subject matter jurisdiction

are not the same as the principles and procedures governing facial challenges to a court’s subject matter

jurisdiction. We need not address or discuss these differences in this appeal because the Diocese’s challenge

to the trial court’s subject matter jurisdiction is a facial challenge.

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ecclesiastical government of all the individual members,

congregations, and officers within the general association, is

unquestioned. All who unite themselves to such a body do so

with an implied consent to this government, and are bound to

submit to it. But it would be a vain consent and would lead to

the total subversion of such religious bodies, if any one

aggrieved by one of their decisions could appeal to the secular

courts and have them reversed. It is of the essence of these

religious unions, and of their right to establish tribunals for the

decision of questions arising among themselves, that those

decisions should be binding in all cases of ecclesiastical

cognizance, subject only to such appeals as the organism itself

provides for.

Nor do we see that justice would be likely to be promoted

by submitting those decisions to review in the ordinary judicial

tribunals. Each of these large and influential bodies (to mention

no others, let reference be had to the Protestant Episcopal, the

Methodist Episcopal, and the Presbyterian churches), has a body

of constitutional and ecclesiastical law of its own, to be found

in their written organic laws, their books of discipline, in their

collections of precedents, in their usage and customs, which as

to each constitute a system of ecclesiastical law and religious

faith that tasks the ablest minds to become familiar with. It is

not to be supposed that the judges of the civil courts can be as

competent in the ecclesiastical law and religious faith of all

these bodies as the ablest men in each are in reference to their

own. It would therefore be an appeal from the more learned

tribunal in the law which should decide the case, to one which

is less so.

Watson v. Jones, 80 U.S. 679, 728-29 (1872). Returning to Watson v. Jones eight decades

later, the United States Supreme Court noted that

[t]he opinion radiates . . . a spirit of freedom for religious

organizations, an independence from secular control or

manipulation, in short, power to decide for themselves, free

from state interference, matters of church government as well as

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those of faith and doctrine. Freedom to select the clergy . . .7 we

think, must now be said to have federal constitutional protection

as a part of the free exercise of religion against state

interference.

Kedroff v. St. Nicholas Cathedral of Russian Orthodox Church in N. Am., 344 U.S. 94, 116

(1952) (footnote omitted and added).

In a later case involving a dispute over the ownership of church property between

local churches and a national organization, the United States Supreme Court noted that “there

are neutral principles of law, developed for use in all property disputes, which can be applied

without ‘establishing’ churches to which property is awarded.” Presbyterian Church in U.S.

v. Mary Elizabeth Blue Hull Mem’l Presbyterian Church, 393 U.S. 440, 442, 449 (1969).

However, the Court added that

First Amendment values are plainly jeopardized when church

property litigation is made to turn on the resolution by civil

courts of controversies over religious doctrine and practice. If

civil courts undertake to resolve such controversies in order to

adjudicate the property dispute, the hazards are ever present of

inhibiting the free development of religious doctrine and of

implicating secular interests in matters of purely ecclesiastical

concern.

7

The language omitted from the quoted portion of Kedroff purported to limit the holding to

circumstances “where no improper methods of choice are proven.” The Kedroff Court in a footnote tied this

reference to language in Gonzalez v. Roman Catholic Archbishop of Manila, 280 U.S. 1, 16-17 (1929), which

“has been regarded as dicta.” 6 Ronald D. Rotunda & John E. Nowak, Treatise on Constitutional Law §

21.12, at 235 (4th ed. 2008). In 1976, the United States Supreme Court held that

civil courts are bound to accept the decisions of the highest judicatories of a religious

organization of hierarchical polity on matters of discipline, faith, internal organization, or

ecclesiastical rule, custom, or law. For civil courts to analyze whether the ecclesiastical

actions of a church judicatory are in that sense “arbitrary” must inherently entail inquiry into

the procedures that canon or ecclesiastical law supposedly requires the church judicatory

to follow, or else in to the substantive criteria by which they are supposedly to decide the

ecclesiastical question. But this is exactly the inquiry that the First Amendment prohibits;

recognition of such an exception would undermine the general rule that religious

controversies are not the proper subject of civil court inquiry, and that a civil court must

accept the ecclesiastical decisions of church tribunals as it finds them.

Serbian E. Orthodox Diocese for U.S. and Can. v. Milivojevich, 426 U.S. 696, 713 (1976).

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Presbyterian Church in U.S. v. Mary Elizabeth Blue Hull Mem’l Presbyterian Church, 393

U.S. at 449. Based on this holding, the United States Supreme Court determined that the

Georgia Supreme Court violated the First Amendment by exercising jurisdiction over a

property dispute that required it to rule upon two disputed religious questions. Presbyterian

Church in U.S. v. Mary Elizabeth Blue Hull Mem’l Presbyterian Church, 393 U.S. at 449-50.

In 1976, echoing its holdings in Watson, Kedroff, and Presbyterian Church in United

States, the United States Supreme Court noted that “civil courts are bound to accept the

decisions of the highest judicatories of a religious organization of hierarchical polity on

matters of discipline, faith, internal organization, or ecclesiastical rule, custom, or law” and

that a civil court in the United States must leave “ecclesiastical decisions . . . as it finds them”

because they lack jurisdiction to decide “religious controversies.” Serbian E. Orthodox

Diocese for U.S. and Can. v. Milivojevich, 426 U.S. at 713.

Three years later, the United States Supreme Court reviewed another decision by the

Georgia Supreme Court involving a dispute over church property caused by a schism within

a local Presbyterian congregation. The Georgia Supreme Court resolved the dispute in favor

of the majority of the local congregation employing what the court called the neutral

principles of law method. Jones v. Wolf, 443 U.S. 595, 599-601 (1979). In theory, “[t]he

method relies exclusively on objective, well-established concepts of trust and property law

familiar to lawyers and judges. It thereby promises to free civil courts completely from

entanglement in questions of religious doctrine, polity, and practice.” Jones v. Wolf, 443

U.S. at 603. While the Court approved the Georgia Supreme Court’s use of the neutral

principles of law analysis, see Jones v. Wolf, 443 U.S. at 602-07, it vacated the decision

because the Georgia Supreme Court had not articulated the basis for deciding the case in

favor of the majority of the local congregation. Jones v. Wolf, 443 U.S. at 609-10. The

Court pointed out that if the decision regarding which faction represents the church involves

“considerations of religious doctrine and polity,” the Georgia courts must defer “to the

presbyterial commission’s determination of that church’s identity.” Jones v. Wolf, 443 U.S.

at 608-09.

C.

This Court strongly embraced the ecclesiastical abstention doctrine twenty years after

the United States Supreme Court decided Watson v. Jones. Noting that “[t]he weight to be

attached to the decisions of such ecclesiastical jurisdictions is well stated by Mr. Justice

Miller in the great case of Watson v. Jones,” Nance v. Busby, 91 Tenn. 303, 326, 18 S.W.

874, 879 (1892), this Court declared that

[t]he relations of a member to his church are not contractual. No

bond of contract, express or implied, connects him with his

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communion, or determines his rights. Church relationship

stands upon an altogether higher plane, and church membership

is not to be compared to that resulting from connection with

mere human associations for profit, pleasure, or culture. The

church undertakes to deal only with the spiritual state of man.

It does not appeal to his purely human and temporal interests.

Admission to its fold is prescribed alone by the church,

professing to act only upon the word of God. It claims the

power of the keys by divine and not human authority. Its right

to determine the grounds of admission has never been

questioned. . . . Civil courts deal only with civil and property

rights. They have, in this country, no ecclesiastical jurisdiction.

. . . We are not to be understood as approving an expulsion from

church membership by irregular methods, and without notice to

the member. But here we have a fact to be dealt with – the fact

that this church, sitting as a church, has determined for itself that

it had the power and the right to exclude these complainants.

They have, as a judicature, adjudged that they had the

jurisdiction, and that the usage and law of the church did not

demand other trial or notice than such as attended the public

action of the church. . . . They may have erred in their

procedure. It is not for a civil court to revise their action in a

matter so vital to their freedom as a church. Defendants, in their

answer, say: “They protest as a church against the effort of

complainants to be reinstated to church membership by an

appeal to the civil courts.” “This church,” say they, “with all

deference to the honorable court, claims that in all matters

purely ecclesiastical it is her prerogative, untrammeled by any

earthly tribunal, to deal with its members, and that no civil

tribunal is invested with the jurisdiction to annul its solemn

decrees of excommunication of its members. It was never

intended that the law should measure the religious stature of the

citizen. Should a chancellor adjudicate who shall partake of the

Lord’s Supper, or shall any church stand a supplicant before any

earthly judicature, and receive a reversal of a judgment of

expulsion.” These be strong words, but true.

Nance v. Busby, 91 Tenn. at 324-26, 18 S.W. at 879.

Over the course of more than a century following the Nance v. Busby decision,

Tennessee’s courts have continued to recognize ecclesiastically required jurisdictional

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limitations on civil courts. Thus, the ecclesiastical abstention doctrine has been applied to

preclude judicial review of matters involving religious institutions that are ecclesiastical and

internal in nature. See Mason v. Winstead, 196 Tenn. 268, 272-73, 265 S.W.2d 561, 563

(Tenn. 1954) (removal of a minister); Travers v. Abbey, 104 Tenn. 665, 668, 58 S.W. 247,

247-48 (1900) (removal of a minister).

However, the application of the ecclesiastical abstention doctrine has not been

extended to “questions of property or personal rights.” See Travers v. Abbey, 104 Tenn. at

668, 58 S.W. at 247 (noting that applying the ecclesiastical abstention doctrine in the case

did not “involve any questions of property or personal rights”). With regard to external

affairs of religious institutions, this Court has applied the doctrine as a limit on the authority

of civil courts to evaluate religious doctrine but has permitted adjudications based upon

neutral principles. See, e.g., Book Agents of Methodist Episcopal Church, S. v. State Bd. of

Equalization, 513 S.W.2d 514, 524-25 (Tenn. 1974) (rejecting the Court of Appeals test for

assessing the taxability of religious publications “based on whether the particular book or

activity adhered to the ‘doctrine and practice’ or ‘religious faith’ of the respective

denominations” in favor of a test that did not turn upon an assessment of religious doctrine).

D.

The Diocese asserts that even if the factual allegations in Mr. Redwing’s complaint

are taken as true, the doctrine of ecclesiastical abstention deprives Tennessee’s civil courts

of subject matter jurisdiction over Mr. Redwing’s negligent hiring, retention, and supervision

claims, as well as his breach of fiduciary duty claims. Mr. Redwing responds that the

Diocese’s facial challenge to the trial court’s subject matter jurisdiction should fail because

the ecclesiastical abstention doctrine should not be extended to apply to his claims in this

case. We have concluded that the trial court has subject matter jurisdiction to adjudicate all

of Mr. Redwing’s claims and, therefore, that the Court of Appeals erred by concluding that

the trial court lacked subject matter jurisdiction over Mr. Redwing’s negligent hiring and

retention claims.

There can be little question that the state and federal courts are currently sharply

divided regarding the courts’ subject matter jurisdiction over suits involving claims similar

to those asserted by Mr. Redwing in this case. See, e.g., Petrell v. Shaw, 902 N.E.2d 401,

408 n.6 (Mass. 2009) (noting that courts are divided on whether constitutional protections

bar certain tort suits against religious institutions based upon the actions of members of the

clergy). Reflecting on these conflicting decisions, the Mississippi Supreme Court recently

noted that “any reasonable research of the issue will yield abundant cases, cites, quotes and

authority for the position taken by both the Diocese and the [victims], as well as other

positions cited by neither.” Roman Catholic Diocese of Jackson v. Morrison, 2003-IA-

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00743-SCT (¶ 22), 905 So. 2d 1213, 1223 (Miss. 2005) (collecting conflicting cases in

appendices).

Our analysis begins with the recognition that religious institutions exist and function

in the context of the broader secular community. See Dobrota v. Free Serbian Orthodox

Church St. Nicholas, 952 P.2d 1190, 1195 (Ariz. Ct. App. 1998). The courts do not inhibit

the free exercise of religion simply by opening their doors to a suit involving a religious

organization. Presbyterian Church in U.S. v. Mary Elizabeth Blue Hull Mem’l Presbyterian

Church, 393 U.S. at 449. Thus, the weight of authority recognizes that religious institutions

are not above the law, see e.g., Skrzypczak v. Roman Catholic Diocese of Tulsa, 611 F.3d

1238, 1244-45 (10th Cir. 2010) (quoting Rayburn v. General Conference of Seventh Day

Adventists, 772 F.2d 1164, 1171 (4th Cir. 1985)), and that, like other societal institutions,

they may be amenable to suits involving property rights, torts, and criminal conduct, see e.g.,

Dobrota v. Free Serbian Orthodox Church St. Nicholas, 952 P.2d at 1195; Thibodeau v.

American Baptist Churches of Conn., 994 A.2d 212, 219 (Conn. App. Ct. 2010); Higgins v.

Maher, 258 Cal.Rptr. 757, 758 (Dist. Ct. App. 1989); Tran v. Fiorenza, 934 S.W.2d 740, 743

(Tex. Ct. App. 1996); see also Moses v. Diocese of Colo., 863 P.2d 310, 320 (Colo. 1993)

(indicating that religious institutions do not have “broad immunity against being sued in civil

courts”).

In civil cases, the ecclesiastical abstention doctrine is implicated only when the

alleged improper conduct that gave rise to the lawsuit is “rooted in religious belief.” Bryce

v. Episcopal Church in the Diocese of Colo., 289 F.3d 648, 657 (10th Cir. 2002); McKelvey

v. Pierce, 800 A.2d 840, 851 (N.J. 2002). Adjudication of disputes by state courts is

appropriate in matters involving religious institutions, as long as the court can resolve the

dispute by applying neutral legal principles and is not required to employ or rely on religious

doctrine to adjudicate the matter. See Jones v. Wolf, 443 U.S. at 602-07; New York Annual

Conference of United Methodist Church v. Fisher, 438 A.2d 62, 68 (Conn. 1980) (holding

that “[i]t is now well established that state judicial intervention is justified when it can be

accomplished by resort to neutral principles of law . . . that eschew consideration of doctrinal

matters such as the ritual and liturgy of worship or the tenets of faith.”); McKelvey v. Pierce,

800 A.2d at 856 (holding that the First Amendment does not apply if “the dispute can be

resolved by the application of purely neutral principles of law and without impermissible

government intrusion (e.g., where the church offers no religious-based justification for its

actions and points to no internal governance rights that would actually be affected)”); Lacy

v. Bassett, 132 S.W.3d 119, 123 (Tex. Ct. App. 2004) (noting that “a state may adopt an

approach, including neutral principles of law, for resolving church disputes that do not

involve consideration of doctrinal matters”).

Adopting a more expansive application of the ecclesiastical abstention doctrine runs

the risk of placing religious institutions in a preferred position, Sanders v. Casa View Baptist

-13-

Church, 134 F.3d 331, 336 (5th Cir. 1998), and favoring religious institutions over secular

institutions could give rise to Establishment Clause concerns. See Zanita E. Fenton, Faith

in Justice: Fiduciaries, Malpractice & Sexual Abuse by Clergy, 8 Mich. J. Gender & L. 45,

75 (2001) (noting that “non-application of tort principles where they might otherwise apply

may be more like Establishment, creating an exception for religion”). Employing the

application of the neutral legal principles approach enables the courts to “give no greater or

lesser deference to tortious conduct committed on third parties by religious organizations

than we do to tortious conduct committed on third parties by non-religious entities.” Malicki

v. Doe, 814 So. 2d 347, 361 (Fla. 2002).

In addition to the Establishment Clause concerns, adopting an expansive application

of the ecclesiastical abstention doctrine that would include claims such as those made by Mr.

Redwing in this case runs counter to the recognition that the justifications for the

ecclesiastical abstention doctrine are “at their lowest ebb” in circumstances where religious

institutions or their employees “harm innocent and unconsenting third parties.” Marci A.

Hamilton, Religious Institutions, the No-Harm Doctrine, and the Public Good, 2004 B.Y.U.

L. Rev. 1099, 1115 (2004). In fact, then-Justice Rehnquist, in ruling on a petition for stay

as a circuit justice, declared that

[t]here are constitutional limitations on the extent to which a

civil court may inquire into and determine matters of

ecclesiastical cognizance and polity in adjudicating intrachurch

disputes. See Serbian Eastern Orthodox Diocese v.

Milivojevich. But this Court never has suggested that those

constraints similarly apply outside the context of such

intraorganization disputes. Thus, Serbian Eastern Orthodox

Diocese and the other cases cited by applicant are not in point.

Those cases are premised on a perceived danger that in

resolving intrachurch disputes the State will become entangled

in essentially religious controversies or intervene on behalf of

groups espousing particular doctrinal beliefs. Such

considerations are not applicable to purely secular disputes

between third parties and a particular defendant, albeit a

religious affiliated organization, in which fraud, breach of

contract, and statutory violations are alleged.

Gen. Council on Fin. and Admin. of United Methodist Church v. Superior Ct. of Cal., San

Diego Cnty., 439 U.S. 1355, 1372-73 (1978) (citation omitted); see also Roman Catholic

Diocese of Jackson v. Morrison, 2003-IA-00743-SCT (¶ 69), 905 So. 2d at 1236 (stating that

“[w]e read Watson [v. Jones] to hold only that civil courts may not take jurisdiction over a

religious organization’s internal, ecclesiastical matters”).

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Claims against a religious institution asserting the negligent hiring of a member of the

clergy do not inevitably enmesh the courts in religious doctrine or dogma. Accordingly, the

Ohio Supreme Court has held that “even the most liberal construction of the First

Amendment will not protect a religious organization’s decision to hire someone who it

knows is likely to commit criminal or tortious acts.” Byrd v. Faber, 565 N.E.2d 584, 590

(Ohio 1991). Similarly, Justice William R. Roy of the Supreme Court of Onondaga County,

New York denied a motion to dismiss similar to the one filed by the Bishop in this case,

stating that if the

plaintiffs are successful in establishing that, with knowledge that

the priest was likely to commit sexual abuse on youths with

whom he was put in contact, his employers placed or continued

him in a setting in which such abuse occurred, the fact that the

placement occurred in the course of internal administration of

the religious units does not preclude holding the institutions

accountable to the victim of their neglect in administration.

Indeed, a contrary holding – that a religious body must be held

free from any responsibility for wholly predictable and

foreseeable injurious consequences of personnel decisions,

although such decisions incorporate no theological or dogmatic

tenets – would go beyond First Amendment protection and cloak

such bodies with an exclusive immunity greater than that

required for the preservation of the principles constitutionally

safeguarded.

Jones ex rel. Jones v. Trane, 591 N.Y.S.2d 927, 932 (Sup. Ct. 1992); see also, e.g., Prince

of Peace Lutheran Church v. Linklater, 28 A.3d 1171, 1184 (Md. 2011) (quoting Jones ex

rel. Jones v. Trane, 591 N.Y.S.2d at 932); McKelvey v. Pierce, 800 A.2d at 857 (same);

Smith v. Privette, 495 S.E.2d 395, 398 (N.C. Ct. App. 1998) (same).

Based on our consideration of the decisions in similar cases handed down by our

colleagues on other state and federal courts, we have concluded that the ecclesiastical

abstention doctrine does not necessarily immunize religious institutions from all claims for

damages based on negligent hiring, supervision, or retention. Tennessee’s courts may

address these claims, as long as they can do so using neutral principles of law and can refrain

from resolving religious disputes and from relying on religious doctrine. See Jones v. Wolf,

443 U.S. at 602-07.

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E.

In this case, the Diocese has not asserted any religious foundation for the alleged

conduct upon which Mr. Redwing’s claims are based. In fact, the Diocese strongly insists

that any such actions would be directly contrary to the beliefs, teachings, and principles of

the Roman Catholic Church. The Diocese does contend, however, that any adjudication of

Mr. Redwing’s negligent hiring, supervision, and retention claims will necessarily require

addressing church doctrine and practices. On this basis, the Diocese argues that the

ecclesiastical abstention bar applies.

The Diocese’s argument overreaches the bounds of the protections afforded the

ecclesiastical abstention doctrine.8 See generally Watson v. Jones, 80 U.S. at 731 (quoting

Harmon v. Dreher, 17 S.C. Eq. (Speers Eq.) 87 (1843) (Johnston, Ch.)) (noting that “[w]hen

a civil right depends upon an ecclesiastical matter, . . . the civil tribunal tries the civil right,

and no more, taking the ecclesiastical decisions out of which the civil right arises as it finds

them”). The United States Supreme Court has noted that the First Amendment does not

require “the States to adopt a rule of compulsory deference to religious authority in resolving

church property disputes, even where no issue of doctrinal controversy is involved.” Jones

v. Wolf, 443 U.S. at 605. However, the Court has also noted that if a court is required to

resolve a religious controversy, it must “defer to the resolution of the doctrinal issue by the

authoritative ecclesiastical body.” Jones v. Wolf, 443 U.S. at 604.

Mr. Redwing is not free to convert his tort claims into an assault on the religious

doctrines, practices, and customs of the Roman Catholic Church. Several of the allegations

in Mr. Redwing’s amended complaint stray into the protected domain of religious liberty.

However, determining whether the ecclesiastical abstention doctrine requires the dismissal

of a complaint does not depend on whether the complaint contains some allegations that

would be improper for adjudication. Rather, it depends on whether the complaint contains

8

The Arizona Court of Appeals found no merit in a similar argument when it held that

The Board contends that, even if neutral principles of tort law applied, the court

would still have to examine the structure of the Church of the Nazarene to properly define

the duties of the various defendants. Maybe so. But the court can examine the structure of

a religious organization for such a purpose. A court may examine religious documents so

long as it is done in purely secular terms. Wolf, 443 U.S. at 604, 99 S.Ct. 3020. Any inquiry

into the structure of the religious organization would not be undertaken to resolve any

internal organizational dispute or the appropriateness of the conduct of the parties in relation

to their religious beliefs or obligations. Inquiry into the organizational structure would be

to factually determine the roles the parties played . . . .

Rashedi v. General Bd. of Church of Nazarene, 54 P.3d 349, 354-55 (Ariz. Ct. App. 2002).

-16-

claims that Tennessee’s courts may properly adjudicate. If the complaint contains one or

more of these claims, then Tennessee’s civil courts are not entirely without subject matter

jurisdiction over this case.

We find that Mr. Redwing’s amended complaint contains claims over which

Tennessee’s civil courts plainly have subject matter jurisdiction. Mr. Redwing asserts that

the Diocese was aware or should have been aware that Fr. Guthrie presented a danger to

children and, nevertheless, placed him in a position where it was foreseeable that he would

sexually abuse a child, as he allegedly did Mr. Redwing, on church property. The Diocese

denies the existence of any religious basis for enabling sexual predators.9 Accordingly, based

on the record before us, it appears that Mr. Redwing will be able to pursue his negligent

hiring, supervision, and retention claims without asking the trial court to resolve any religious

disputes or to rely on religious doctrine. In other words, Mr. Redwing’s claims can be

pursued based upon breach of a secular duty by the Diocese without requiring the court to

resolve disputes over religious questions.

F.

We decline to embrace the distinction drawn by the Court of Appeals between Mr.

Redwing’s negligent hiring and retention claims and his negligent supervision claim.

Professors Lupu and Tuttle have correctly observed that “[t]he torts of negligent hiring,

supervision, and retention all involve essentially the same questions: did the defendant have

notice of the wrongdoer’s propensity to commit sexual misconduct, authority to prevent the

harm, and some duty of care to those who were harmed?” Ira C. Lupu & Robert W. Tuttle,

Sexual Misconduct and Ecclesiastical Immunity, 2004 B.Y.U. L. Rev. 1789, 1856 n.266

(2004) (“Lupu & Tuttle, 2004 B.Y.U. L. Rev.”). When “[s]een in that light, hiring and

retention are simply points along a continuum of opportunities for a principal to exercise

control over its agents[, and] . . . [i]t is not clear . . . why that distinction should matter.”

Lupu & Tuttle, 2004 B.Y.U. L. Rev. at 1856 n.266.

Applying a “secular standard to secular conduct that is tortious is not prohibited by

the Constitution.” Moses v. Diocese of Colo., 863 P.2d at 320. Accordingly, subjecting a

religious institution to liability based on its knowledge of the sexual predilections of its

clergy does not require interference with the institution’s beliefs. As Professor Hamilton has

explained:

9

Mr. Redwing does not dispute the Diocese’s assertion that church doctrine neither permits nor

encourages the placement of priests, known or suspected to be pedophiles, in positions where they can prey

on children. Should issues regarding church doctrine arise in the course of the proceeding, the trial court

would be required to defer to the religious institution for the answer.

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[I]t is both logical and sensible to pose the legal question as

whether the person being considered or retained is appropriate

for a job involving access to children, period. The secular

courts need not look at the church’s beliefs in order to take

evidence of the organization’s actions solely relating to children,

just as it need not investigate beliefs when it weighs evidence

involving a bounced check or a breach of contract. The church,

of course, can also place religious restrictions on candidates and

use religious principles in choosing any particular person for

ministry. The question here is not qualifications for ministry per

se, but rather employment for a position relating to children.

Marci A. Hamilton, The Waterloo for the So-Called Church Autonomy Theory: Widespread

Clergy Abuse and Institutional Cover-Up, 29 Cardozo L. Rev. 225, 242 (2007). The

Supreme Court of Mississippi has also noted:

We are satisfied that the cloak of religion, which does not shield

religious institutions from civil responsibility for fraud or breach

of contract, surely cannot serve to shield such institutions from

civil responsibility for more abhorrent conduct such as sexual

molestation of a child. Nor should it shield those who fail in

their duty to protect children from it.

Roman Catholic Diocese of Jackson v. Morrison, 2003-IA-00743-SCT (¶ 74), 905 So. 2d at

1237.

G.

The Court of Appeals failed to address whether Tennessee’s civil courts have subject

matter jurisdiction over Mr. Redwing’s breach of a fiduciary duty claim. We will address

this issue because it was argued in briefing before the trial court, the Court of Appeals, and

this Court. We have concluded that the ecclesiastical abstention doctrine does not impose

an absolute bar on claims for breach of fiduciary duty10 against religious institutions.

10

Recently, we held that a fiduciary relationship “arises when one person reposes special trust and

confidence in another person and that other person—the fiduciary—undertakes to assume responsibility for

the affairs of the other party.” Overstreet v. TRW Commercial Steering Div., 256 S.W.3d 626, 641-42 (Tenn.

2008). From this relationship arises a fiduciary duty “to act for and to give advice for the benefit of the other

person on matters within the scope of the relationship.” Overstreet v. TRW Commercial Steering Div., 256

S.W.3d at 642.

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Among the majority of courts that have permitted clerical sexual abuse claims against

religious institutions to proceed, several courts have allowed breach of fiduciary claims to

proceed, but only when the proof of the fiduciary relationship is not predicated solely on

religious duties or religious authority. See, e.g., Petrell v. Shaw, 902 N.E.2d at 406-07. For

example, the Supreme Court of Mississippi has stated that “a priest may not be held to be in

a fiduciary relationship merely based upon his status as a priest.” Mabus v. St. James

Episcopal Church, 2003-CA-00123-SCT (¶ 28), 884 So. 2d 747, 760 (Miss. 2004).

This limitation on claims based on breach of fiduciary duty arises from the

constitutional concerns that

the religious status of persons and the religious character of

institutions should not give rise to fiduciary duties as a matter of

law. In applying the law of fiduciary duty, courts should take

great care to avoid the imposition, by juries and others, of

liability for breaches of duties that are distinctly religious.

Lupu & Tuttle, 2004 B.Y.U. L. Rev. at 1797. While courts have, with some regularity, found

fiduciary relationships to exist on other grounds between ministers and parishioners, “rarely

has a court found such a fiduciary relationship between . . . a Diocese . . . and a parishioner.

Such a fiduciary relationship will likely exist only where there is a unique relationship

between the Diocese and the individual, or where the Diocese assumes some duties toward

the parishioner.” W. Cole Durham & Robert Smith, 2 Religious Organizations and the Law

§ 11:43 (2011).

A religious institution’s fiduciary obligations cannot be predicated on a religious duty

and cannot arise solely from the relationship between the institution and its members. Thus,

breach of fiduciary obligation claims against religious institutions remain quite rare.

However, the status of a defendant as a religious institution does not, by itself, preclude the

existence of a fiduciary relationship and the possibility of a breach of fiduciary duty claim.

Accordingly, we find that Tennessee’s civil courts may exercise jurisdiction over a breach

of fiduciary duty claim against a religious institution, as long as the fiduciary relationship is

not based on a religious duty or is not inextricably tied to a religious duty.

III.

The second issue in this case involves the decision of the majority of the Court of

Appeals that the trial court erred by failing to find that all of Mr. Redwing’s claims were

time-barred. The parties’ dispute does not involve a disagreement over when the underlying

tortious conduct occurred or when Mr. Redwing became eighteen years old. Rather, the

parties’ dispute centers on the application of three doctrines – the discovery rule, fraudulent

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concealment, and equitable estoppel – to the facts of this case. Based on the present record,

we have concluded that the dismissal of Mr. Redwing’s claims on statute of limitations

grounds was premature.

A.

The Diocese chose a Tenn. R. Civ. P. 12.02(6) motion as its vehicle for seeking

dismissal of Mr. Redwing’s complaint based on the statute of limitations.11 A Tenn. R. Civ.

P. 12.02(6) motion tests only the legal sufficiency of the plaintiff’s complaint, not the

strength of the plaintiff’s proof. Highwoods Props., Inc. v. City of Memphis, 297 S.W.3d

695, 700 (Tenn. 2009). Thus, courts ruling on a Tenn. R. Civ. P. 12.02(6) motion “‘must

construe the complaint liberally, presuming all factual allegations to be true and giving the

plaintiff the benefit of all reasonable inferences.’” Webb v. Nashville Area Habitat for

Humanity, Inc., 346 S.W.3d 422, 426 (Tenn. 2011) (quoting Tigg v. Pirelli Tire Corp., 232

S.W.3d 28, 31-32 (Tenn. 2007)). The determination of whether a suit should be dismissed

based on the statute of limitations presents a question of law which we review de novo with

no presumption of correctness. Fahrner v. SW Mfg., Inc., 48 S.W.3d 141, 144 (Tenn. 2001).

B.

Statutes of limitations promote fairness and justice. Pero’s Steak & Spaghetti House

v. Lee, 90 S.W.3d 614, 621 (Tenn. 2002). They are shields, not swords, Lawman v. Barnett,

180 Tenn. 546, 565, 177 S.W.2d 121, 128 (1944), and they reflect “‘a societal choice that

actions must be brought within a certain time period.’” Parrish v. Marquis, 172 S.W.3d 526,

532 (Tenn. 2005) (quoting Palmer Dev. Corp. v. Gordon, 1999 ME 22, ¶ 11, 723 A.2d 881,

884). They are based on the presumption that persons with the legal capacity to litigate will

not delay bringing suit on a meritorious claim beyond a reasonable time. Hackworth v.

Ralston Purina Co., 214 Tenn. 506, 510, 381 S.W.2d 292, 294 (1964); see also

Riddlesbarger v. Hartford Ins. Co., 74 U.S. 386, 390 (1869).

We have frequently pointed out that statutes of limitations (1) promote stability in

personal and business relationships, see Potts v. Celotex Corp., 796 S.W.2d 678, 684 (Tenn.

1990) (quoting Teeters v. Currey, 518 S.W.2d 512, 515 (Tenn. 1974)), (2) give notice to

defendants of potential lawsuits, Tigg v. Pirelli Tire Corp., 232 S.W.3d 28, 33 (Tenn. 2007),

(3) prevent undue delay in filing lawsuits, Leach v. Taylor, 124 S.W.3d 87, 90 (Tenn. 2004)

(quoting Quality Auto Parts Co. v. Bluff City Buick Co., 876 S.W.2d 818, 820 (Tenn. 1994));

Weber v. Moses, 938 S.W.2d 387, 393 (Tenn. 1996), (4) “avoid the uncertainties and burdens

11

A Tenn. R. Civ. P. 12.02(6) motion is an appropriate way to seek to invoke the statute of limitations

as grounds for dismissing a complaint. See Hawk v. Chattanooga Orthopaedic Grp., P.C., 45 S.W.3d 24,

28 (Tenn. Ct. App. 2000); 1 Pivnick § 11:3, at 857-58.

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inherent in pursuing and defending stale claims,” John Kohl & Co. v. Dearborn & Ewing,

977 S.W.2d 528, 533 (Tenn. 1998); Wyatt v. A-Best, Co., 910 S.W.2d 851, 855 (Tenn. 1995),

and (5) “ensure that evidence is preserved and facts are not obscured by the lapse of time or

the defective memory or death of a witness,” Pero’s Steak & Spaghetti House v. Lee, 90

S.W.3d at 621; Applewhite v. Memphis State Univ., 495 S.W.2d 190, 195 (Tenn. 1973)

(quoting Chase Sec. Corp. v. Donaldson, 325 U.S. 304, 314 (1945)). Accordingly, the courts

construe exceptions to statutes of limitations carefully to assure that they are not extended

beyond their plain meaning. See Abels ex rel. Hunt v. Genie Indus., Inc., 202 S.W.3d 99, 102

(Tenn. 2006) (quoting Owen v. Summers, 97 S.W.3d 114, 123 (Tenn. Ct. App. 2001)); see

also Cada v. Baxter Healthcare Corp., 920 F.2d 446, 453 (7th Cir. 1990).

A defense predicated on the statute of limitations triggers the consideration of three

components – the length of the limitations period, the accrual of the cause of action, and the

applicability of any relevant tolling doctrines. All of these elements are inter-related and,

therefore, should not be considered in isolation. Carli McNeill, Note, Seeing the Forest: A

Holistic View of the RICO Statute of Limitations, 85 Notre Dame L. Rev. 1231, 1231 (2010).

Arriving at a fair and just application of these inter-related elements in a particular case can

be challenging. As Judge Posner has noted, “the law concerning statutes of limitations fairly

bristles with subtle, intricate, often misunderstood issues.” Wolin v. Smith Barney Inc., 83

F.3d 847, 849 (7th Cir. 1996), abrogated on other grounds by Klehr v. A.O. Smith Corp., 521

U.S. 179, 194-95 (1997).

C.

The length of the limitations period is perhaps the most straightforward of the three

elements. Statutes of limitations are predominantly “creatures of the legislative branch of

government.” Carney v. Smith, 222 Tenn. 472, 477, 437 S.W.2d 246, 248 (1969).

Accordingly, subject only to limitations in the state and federal constitutions,12 the General

Assembly customarily defines limitations periods by statute. See generally McDaniel v.

Mulvihill, 196 Tenn. 41, 48, 263 S.W.2d 759, 762 (1953); Graves v. Grady’s Inc., 906

S.W.2d 463, 466 (Tenn. Ct. App. 1995).

The choice of the correct statute of limitations is made by considering the “‘gravamen

of the complaint.’” Whaley v. Perkins, 197 S.W.3d 665, 670 (Tenn. 2006) (quoting Gunter

v. Lab. Corp. of Am., 121 S.W.3d 636, 638 (Tenn. 2003)). In common parlance, this rather

12

See Morris v. Gross, 572 S.W.2d 902, 906-07 (Tenn. 1978) (invalidating an abbreviation of the

limitations period for already pending medical malpractice claims on due process grounds).

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elliptical phrase13 refers to the “substantial point,” the “real purpose,” or the “object” of the

complaint. Estate of French v. Stratford House, 333 S.W.3d 546, 557 (Tenn. 2011) (quoting

Black’s Law Dictionary 770 (9th ed. 2009)) (“substantial point”); Bland v. Smith, 197 Tenn.

683, 686, 277 S.W.2d 377, 379 (1953) (“real purpose”); Bodne v. Austin, 156 Tenn. 353, 360,

2 S.W.2d 100, 101 (1928) (“object”), overruled on other grounds by Teeters v. Currey, 518

S.W.2d 512, 517 (Tenn. 1974). It does not involve the “designation” or “form” of the action.

Pera v. Kroger Co., 674 S.W.2d 715, 719 (Tenn. 1984) (“designation”); Callaway v.

McMillian, 58 Tenn. (11 Heisk.) 557, 559 (1872) (“form”). Determining the “gravamen of

the complaint” is a question of law. Gunter v. Lab. Corp. of Am., 121 S.W.3d at 638.

D.

The concept of accrual relates to the date on which the applicable statute of limitations

begins to run. Columbian Mut. Life Ins. Co. v. Martin, 175 Tenn. 517, 526, 136 S.W.2d 52,

56 (1940); see also McSpadden v. Parkenson, 10 Tenn. App. 11, 18 (1928); 22 Steven W.

Feldman, Tennessee Practice: Contract Law and Practice § 12:80, at 601 (2006). The

traditional accrual rule was that a cause of action accrues and the applicable statute of

limitations begins to run “when the plaintiff has a cause of action and the right to sue.”

Armistead v. Clarksville-Montgomery Cnty. Sch. Sys., 222 Tenn. 486, 490, 437 S.W.2d 527,

528-29 (1969). The statute of limitations began to run even though “the person entitled to

an action . . . [had] no knowledge of his right to sue, or the facts out of which this right

arises.” 2 H.G. Wood, A Treatise on the Limitation of Actions § 276c(1), at 1411 (4th rev.

ed 1916) (“Wood”). Accordingly, under the traditional accrual rule, the cause of action

accrued in personal injury cases “immediately upon the infliction or occurrence of [the]

injury.” Teeters v. Currey, 518 S.W.2d at 515-16; Bodne v. Austin, 156 Tenn. at 370-71, 2

S.W.2d at 105.

The traditional accrual rule had another significant attribute. Once the statute of

limitations began to run, it did not cease for any intervening disability, Lawrence v.

Thornhill, 1 Tenn. Cas. (Shannon) 388, 390 (1875); Jones v. Preston, 40 Tenn. (3 Head) 161,

162 (1859), or for any other subsequent event not contemplated by the limitations statute

itself. 1 Wood § 6, at 12.

As time passed, there was a growing awareness that the policies furthered by statutes

of limitations should give way when the interests of justice would be served by permitting

plaintiffs to pursue their legitimate claims. See Burnett v. N.Y. Cent. R.R., 380 U.S. 424, 428

(1965). In 1950, the Harvard Law Review suggested an exception to the traditional rule “in

those situations where the plaintiff is generally unlikely to learn of the harm before the

13

One authority has characterized the phrase as “infelicitously redundant.” Bryan A. Garner, A

Dictionary of Modern Legal Usage 391 (2d ed. 1995).

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remedy expires.” Developments in the Law – Statutes of Limitations, 63 Harv. L. Rev. 1177,

1203 (1950). In the intervening years, courts and legislatures began to recognize exceptions

to the traditional accrual rules that “take the sting out of a statute of limitations for equitable

reasons.” Adam Bain & Ugo Colella, Interpreting Federal Statutes of Limitations, 37

Creighton L. Rev. 493, 502 (2004) (“Bain & Colella”).

Harvard Law Review’s suggestion rapidly gained acceptance as many state courts and

legislatures adopted what is now known as the “discovery rule.” In 1974, this Court

recognized and adopted the discovery rule in response to the “harsh and oppressive” results

of the traditional accrual rule in circumstances in which the injured party was unaware of the

injury. Teeters v. Currey, 518 S.W.2d at 516. The Court, expressly limiting its decision to

surgical malpractice cases, held that “the cause of action accrues and the statute of limitations

commences to run when the patient discovers, or in the exercise of reasonable care and

diligence for his own health and welfare, should have discovered the resulting injury.”

Teeters v. Currey, 518 S.W.2d at 517. In his concurring opinion, Justice Harbison noted that

“[i]n the vast majority of personal injury cases . . . the date of the injury and the date of

discovery are simultaneous.” Teeters v. Currey, 518 S.W.2d at 518 (Harbison, J.,

concurring); see also Cada v. Baxter Healthcare Corp., 920 F.2d at 450.

The Court later expanded the application of the discovery rule to many other injuries

to persons or property. See McCroskey v. Bryant Air Conditioning Co., 524 S.W.2d 487, 491

(Tenn. 1975) (holding that “in tort actions . . . the cause of action accrues . . . when the injury

occurs or is discovered, or when in the exercise of reasonable care and diligence, it should

have been discovered.”); see also Justin N. Joy, Comment, Civil Procedure – Pero’s Steak

& Spaghetti House v. Lee: Tennessee Declines to Extend the Discovery Rule to Claims of

Converted Negotiable Instruments, 34 U. Mem. L. Rev. 475, 487 & n.63 (2004) (cataloging

the causes of action to which the discovery rule applies). The Court has also declined to

apply the discovery rule to certain types of claims. Pero’s Steak & Spaghetti House v. Lee,

90 S.W.3d at 624 (declining to apply the discovery rule in cases involving the conversion of

negotiable instruments).

Following our decision in Teeters v. Currey, this Court refined the discovery rule to

make clear that it included not only the discovery of the injury but also the discovery of the

source of the injury. Sherrill v. Souder, 325 S.W.3d 584, 595 (Tenn. 2010) (holding that the

cause of action accrues when the plaintiff discovers both the injury and the “identity of the

person or persons whose wrongful conduct caused the injury”); John Kohl & Co. v. Dearborn

& Ewing, 977 S.W.2d 528, 532 (Tenn. 1998) (holding that the cause of action accrues when

the plaintiff knows or should know that it sustained an injury “as a result of wrongful . . .

conduct by the defendant”); Wyatt v. A-Best, Co., 910 S.W.2d 851, 855 (Tenn. 1995)

(holding that “a prerequisite to the running of the statute of limitations is [the] plaintiff’s

reasonable knowledge of the injury, its cause and origin”); Foster v. Harris, 633 S.W.2d 304,

-23-

305 (Tenn. 1982) (holding that “no judicial remedy [is] available to [a] plaintiff until he [or

she] discover[s], or reasonably should have discovered, (1) the occasion, the manner and

means by which a breach of duty occurred that produced his [or her] injury; and (2) the

identity of the defendant who breached the duty.”).

The Court also made it clear that the discovery rule does not delay the accrual of a

cause of action and the commencement of the statute of limitations until the plaintiff knows

the full extent of the damages, B & B Enters. of Wilson Cnty., LLC v. City of Lebanon, 318

S.W.3d 839, 849 (Tenn. 2010); Weber v. Moses, 938 S.W.2d 387, 393 (Tenn. 1996) (holding

that the plaintiff cannot delay filing suit “until all injurious effects or consequences of the

actionable wrong are fully known”), or until the plaintiff knows the specific type of legal

claim it has, John Kohl & Co. v. Dearborn & Ewing, 977 S.W.2d at 533; see also Stanbury

v. Bacardi, 953 S.W.2d 671, 677 (Tenn. 1997); Wyatt v. A-Best, Co., 910 S.W.2d at 855.

The discovery rule is not intended to permit a plaintiff to delay filing suit until the discovery

of all the facts that affect the merits of his or her claim. Mills v. Booth, 344 S.W.3d 922, 929

(Tenn. Ct. App. 2010) (quoting Burk v. RHA/Sullivan, Inc., 220 S.W.3d 896, 902 (Tenn. Ct.

App. 2006)).

Under the current discovery rule, a cause of action accrues and the statute of

limitations begins to run not only when the plaintiff has actual knowledge of a claim, but also

when the plaintiff has actual knowledge of “facts sufficient to put a reasonable person on

notice that he [or she] has suffered an injury as a result of wrongful conduct.” Carvell v.

Bottoms, 900 S.W.2d 23, 29 (Tenn. 1995) (quoting Roe v. Jefferson, 875 S.W.2d 653, 657

(Tenn. 1994)). This latter circumstance is variously referred to as “constructive notice” 14 or

“inquiry notice.”15 Quoting the Iowa Supreme Court, we have explained that inquiry notice

“charges a plaintiff with knowledge of those facts that a reasonable investigation would have

disclosed. . . . [O]nce a plaintiff gains information sufficient to alert a reasonable person of

the need to investigate ‘the injury,’ the limitation period begins to run.” Sherrill v. Souder,

325 S.W.3d at 593 n.7 (quoting Rathje v. Mercy Hosp., 745 N.W.2d 443, 461 (Iowa 2008));

see also Diamond v. Davis, 680 A.2d 364, 372 (D.C. 1996) (defining inquiry notice as the

“notice which a plaintiff would have possessed after due investigation”).

14

John Kohl & Co. v. Dearborn & Ewing, 977 S.W.2d at 532; Lufkin v. Conner, 338 S.W.3d 499, 503

(Tenn. Ct. App. 2010).

15

Sherrill v. Souder, 325 S.W.3d at 594-95; Potts v. Celotex Corp., 796 S.W.2d 678, 680-81 (Tenn.

1990) (quoting Hoffman v. Hosp. Affiliates, Inc., 652 S.W.2d 341, 344 (Tenn. 1983)); Doe v. Catholic Bishop

for Diocese of Memphis, 306 S.W.3d at 718.

-24-

E.

In addition to the relaxation of the traditional accrual rules, both the Tennessee

General Assembly and the courts have recognized various tolling doctrines that suspend or

extend the running of the limitations period. For example, the General Assembly has enacted

statutes tolling the statute of limitations (1) for minors and for adults who lack the capacity

to sue,16 (2) for civil claims by plaintiffs who have been enjoined from filing suit,17 (3) for

claims against personal representatives of a decedent’s estate,18 and (4) for claims against

out-of-state defendants who are not otherwise amenable to service of process.19 More

recently, the General Assembly has provided for tolling the statute of limitations during times

of disaster.20

This Court has likewise recognized several tolling doctrines. In civil proceedings, we

have recognized and applied the doctrines of equitable estoppel and fraudulent concealment

to toll the running of the statute of limitations. In criminal proceedings, we have recognized

the doctrine of “due process” tolling. Workman v. State, 41 S.W.3d 100, 103 (Tenn. 2001);

Seals v. State, 23 S.W.3d 272, 279 (Tenn. 2000); Burford v. State, 845 S.W.2d 204, 209

(Tenn. 1992). However, unlike other state courts and the federal courts, we have declined

to recognize the doctrine of equitable tolling in civil cases. See Fahrner v. SW Mfg., Inc., 48

S.W.3d at 145 n.2; Norton v. Everhart, 895 S.W.2d 317, 321 (Tenn. 1995). We have also

declined to recognize the doctrine of cross-jurisdictional tolling. See Maestas v. Sofamore

Danek Grp., Inc., 33 S.W.3d 805, 808 (Tenn. 2000).

E QUITABLE E STOPPEL

The doctrine of equitable estoppel arises from the equitable maxim that no person may

take advantage of his or her own wrong.21 In the context of a defense predicated on a statute

of limitations, the doctrine of equitable estoppel tolls the running of the statute of limitations

16

Tenn. Code Ann. § 28-1-106 (Supp. 2011).

17

Tenn. Code Ann. § 28-1-109 (2000).

18

Tenn. Code Ann. § 28-1-110 (2000).

19

Tenn. Code Ann. § 28-1-111 (2000); Arrowood v. McMinn Cnty., 173 Tenn. 562, 565-68, 121

S.W.2d 566, 567-69 (1938).

20

Tenn. Code Ann. § 28-1-116 (Supp. 2011).

21

See Richardson v. Snipes, 46 Tenn. App. 494, 515, 330 S.W.2d 381, 390 (1959) (quoting 1 Henry

R. Gibson, Gibson’s Suits in Chancery § 60, at 74 (5th ed. 1955)) (“One of the maxims of equity is, ‘No one

can take advantage of his own wrong.’”); see also 18 Tenn. Jur. Limitation of Actions § 42, at 124-25 (2005).

-25-

when the defendant has misled the plaintiff into failing to file suit within the statutory

limitations period. Fahrner v. SW Mfg., Inc., 48 S.W.3d at 145; Ingram v. Earthman, 993

S.W.2d 611, 633 (Tenn. Ct. App. 1998). When the doctrine of equitable estoppel is

applicable, it prevents a defendant from asserting what could be an otherwise valid statute

of limitations defense. Hardcastle v. Harris, 170 S.W.3d 67, 84 (Tenn. Ct. App. 2004).

The party invoking the doctrine of equitable estoppel has the burden of proof.

Hardcastle v. Harris, 170 S.W.3d at 85. Thus, whenever a defendant has made out a prima

facie statute of limitations defense, the plaintiff must demonstrate that the defendant induced

him or her to put off filing suit by identifying specific promises, inducements, suggestions,

representations, assurances, or other similar conduct by the defendant that the defendant

knew, or reasonably should have known, would induce the plaintiff to delay filing suit.

Fahrner v. SW Mfg., Inc., 48 S.W.3d at 145; Hardcastle v. Harris, 170 S.W.3d at 85. The

plaintiff “must also demonstrate that [his or her] delay in filing suit was not attributable to

[his or her] own lack of diligence.” Hardcastle v. Harris, 170 S.W.3d at 85.

The doctrine of equitable estoppel applies only when the defendant engages in

misconduct. B & B Enters. of Wilson Cnty., LLC v. City of Lebanon, 318 S.W.3d at 849

(quoting Norton v. Everhart, 895 S.W.2d at 321). Examples of circumstances which have

prompted the courts to invoke the doctrine of equitable estoppel to prevent a defendant from

asserting a statute of limitations defense include: (1) when a defendant promises not to assert

a statute of limitations defense,22 (2) when a defendant promises to pay or otherwise satisfy

the plaintiff’s claim without requiring the plaintiff to file suit,23 and (3) when a defendant

promises to settle a claim without litigation following the conclusion of another proceeding

between the defendant and a third party.24

In the context of defenses predicated on a statute of limitations, the doctrine of

equitable estoppel always involves allegations that the defendant misled the plaintiff.

Fahrner v. SW Mfg., Inc., 48 S.W.3d at 146. The focus of an equitable estoppel inquiry “is

on the defendant’s conduct and the reasonableness of the plaintiff’s reliance on that

conduct.” Hardcastle v. Harris, 170 S.W.3d at 85; see also Fahrner v. SW Mfg., Inc., 48

S.W.3d at 146. Determining whether to invoke the doctrine of equitable estoppel to counter

a statute of limitations defense requires the courts to examine the facts and circumstances of

the case to determine whether the defendant’s conduct is sufficiently unfair or misleading to

22

American Mut. Liab. Ins. Co. v. Baxter, 210 Tenn. 242, 247-48, 357 S.W.2d 825, 827 (1962).

23

Brick Church Transmission, Inc. v. Southern Pilot Ins. Co., 140 S.W.3d 324, 335 (Tenn. Ct. App.

2003) (quoting Fairway Vill. Condo. Ass’n, Inc. v. Connecticut Mut. Life Ins. Co., 934 S.W.2d 342, 346

(Tenn. Ct. App. 1996)).

24

Hardcastle v. Harris, 170 S.W.3d at 85-86.

-26-

outweigh the public policy favoring the enforcement of statutes of limitations. Hardcastle

v. Harris, 170 S.W.3d at 85.

Plaintiffs asserting equitable estoppel must have acted diligently in pursuing their

claims both before and after the defendant induced them to refrain from filing suit. The

statute of limitations is tolled for the period during which the defendant misled the plaintiff.

Fahrner v. SW Mfg., Inc., 48 S.W.3d at 146; Lusk v. Consolidated Aluminum Corp., 655

S.W.2d 917, 920-21 (Tenn. 1983). The plaintiff must demonstrate that suit was timely filed

after the plaintiff knew or, in the exercise of reasonable diligence, should have known that

the conduct giving rise to the equitable estoppel claim had ceased to be operational. See

Ingram v. Earthman, 993 S.W.2d at 633. At the point when the plaintiff knows or should

know that the defendant has misled him or her, the original statute of limitations begins to

run anew, and the plaintiff must file his or her claim within the statutory limitations period.

Fahrner v. SW Mfg., Inc., 48 S.W.3d at 146.25

F RAUDULENT C ONCEALMENT

For over a century now, Tennessee’s courts have also held that the doctrine of

fraudulent concealment will toll the running of a statute of limitations. In re Estate of Davis,

308 S.W.3d 832, 841 (Tenn. 2010); Woodfolk v. Marley, 98 Tenn. 467, 471, 40 S.W. 479,

480 (1897); Porter’s Lessee v. Cocke, 7 Tenn. (1 Peck) 29, 41 (1823), overruled on other

grounds by Love v. Harper, 23 Tenn. (4 Hum.) 113, 117 (1843). This doctrine is one of the

oldest exceptions to the statute of limitations. See Bailey v. Glover, 88 U.S. 342, 348-49

(1874). While the doctrine of fraudulent concealment shares many of the attributes of the

doctrine of equitable estoppel, Tennessee’s courts, like most courts, have recognized it as a

free-standing doctrine. See Bain & Colella, 37 Creighton L. Rev. at 506 (noting that “[m]ost

courts do not explicitly classify fraudulent concealment as either equitable estoppel or

equitable tolling, but rather treat it sui generis”).

As it currently exists in Tennessee, the doctrine of fraudulent concealment is aligned

with the discovery rule.26 Under the fraudulent concealment doctrine, the statute of

25

On this point, Fahrner v. SW Mfg., Inc. appears to reverse Ingram v. Earthman, 993 S.W.2d at 633

and Fairway Vill. Condo. Ass’n v. Connecticut Mut. Life Ins. Co., 934 S.W.2d 342, 346 (Tenn. Ct. App.

1996) in which the Court of Appeals adopted the majority rule that if the basis for estoppel ends before the

statute of limitations has run, the plaintiff must file suit within the original limitations period if reasonable

time remains within which to file suit. Likewise, if the basis for estoppel ends after the statute of limitations

has run, the plaintiff must file suit within a reasonable time. Because the parties in this case have not joined

issue on this point, we need not reconsider it in the present case.

26

We have explained that “[i]n a discovery rule case, the plaintiff may claim that the defendant

(continued...)

-27-

limitations is tolled when “the defendant has taken steps to prevent the plaintiff from

discovering he [or she] was injured.” Fahrner v. SW Mfg., Inc., 48 S.W.3d at 146. While

other decisions couch the fraudulent concealment doctrine in terms of the defendant taking

affirmative steps “to conceal the cause of action,”27 the reference to “cause of action” in this

context is synonymous with the plaintiff’s injury.28

Until today, the cases applying the fraudulent concealment doctrine have involved

circumstances in which the defendant has fraudulently concealed the existence of the

plaintiff’s injury and the plaintiff was not otherwise aware that he or she had been injured.

However, circumstances can also arise in which the plaintiff is aware that he or she had been

injured but does not know or have reason to know the identity of the person or persons who

caused the injury. In this circumstance, the discovery rule would apply in precisely the same

way that it would apply in circumstances in which the plaintiff did not know or have reason

to know that he or she had been injured. See Sherrill v. Souder, 325 S.W.3d at 595 (holding

that the cause of action accrues when the plaintiff discovers both the injury and the “identity

of the person or persons whose wrongful conduct caused the injury”); Wyatt v. A-Best Co.,

910 S.W.2d at 855 (holding that a prerequisite to the running of a statute of limitations is the

plaintiff’s “reasonable knowledge of the injury, its cause and origin”).

Professor John Dawson has observed that “there is abundant authority for the

proposition that direct misrepresentation or other active steps to conceal the identity of the

wrongdoer do justify delay and [the suspension of] the statute.” John P. Dawson, Fraudulent

Concealment and Statutes of Limitation, 31 Mich. L. Rev. 875, 914 (1933). Accordingly, we

have concluded that the doctrine of fraudulent concealment applies not only to circumstances

in which the defendant purposefully engages in conduct intended to conceal the plaintiff’s

injury from the plaintiff but also to circumstances in which the defendant engages in conduct

intended to conceal the identity of the person or persons who caused the plaintiff’s injury

from the plaintiff.

A claim of fraudulent concealment to toll the running of a statute of limitations

contains four elements. The plaintiff invoking the fraudulent concealment doctrine must

26

(...continued)

intentionally prevented him from discovering his injury. Where that claim is proved true, the doctrine of

‘fraudulent concealment’ applies.” Fahrner v. SW Mfg., Inc., 48 S.W.3d at 145.

27

See, e.g., Shadrick v. Coker, 963 S.W.2d 726, 735 (Tenn. 1998).

28

See Albert v. Sherman, 167 Tenn. 133, 138, 67 S.W.2d 140, 141 (1934) (noting that “it is the

original injury which is the cause of action, or which gives rise to the cause of action, and that the damage

sustained is not the cause of action. The statute begins to run when the cause of action accrues.”), overruled

on other grounds by Teeters v. Currey, 518 S.W.2d at 514-17.

-28-

allege and prove: (1) that the defendant affirmatively concealed the plaintiff’s injury or the

identity of the wrongdoer or failed to disclose material facts regarding the injury or the

wrongdoer despite a duty to do so;29 (2) that the plaintiff could not have discovered the injury

or the identity of the wrongdoer despite reasonable care and diligence;30 (3) that the

defendant knew that the plaintiff had been injured and the identity of the wrongdoer;31 and

(4) that the defendant concealed material information from the plaintiff by “‘withholding

information or making use of some device to mislead’ the plaintiff in order to exclude

suspicion or prevent inquiry.” 32

Plaintiffs asserting the doctrine of fraudulent concealment to toll the running of a

statute of limitations must demonstrate that they exercised reasonable care and diligence in

pursuing their claim. See Vance v. Schulder, 547 S.W.2d 927, 930 (Tenn. 1977); Ray v.

Scheibert, 224 Tenn. 99, 104, 450 S.W.2d 578, 580-81 (1969). The statute of limitations is

tolled until the plaintiff discovers or, in the exercise of reasonable diligence, should have

discovered the defendant’s fraudulent concealment or sufficient facts to put the plaintiff on

actual or inquiry notice of his or her claim. See Fahrner v. SW Mfg., Inc., 48 S.W.3d at 145.

At the point when the plaintiff discovers or should have discovered the defendant’s

fraudulent concealment or sufficient facts to put the plaintiff on actual or inquiry notice of

his or her claim, the original statute of limitations begins to run anew, and the plaintiff must

file his or her claim within the statutory limitations period.

IV.

Because of the procedural posture of this case, the record is far from sufficient to

permit the courts to make a conclusive determination regarding whether Mr. Redwing’s

claims against the Diocese are time-barred. While the record reflects that the Diocese made

out a prima facie defense based on the statute of limitations, the question before us is whether

the factual allegations in Mr. Redwing’s amended complaint regarding the statute of

limitations issue are sufficient to survive a Tenn. R. Civ. P. 12.02(6) motion to dismiss.

29

See Pero’s Steak & Spaghetti House v. Lee, 90 S.W.3d at 625; Shadrick v. Coker, 963 S.W.2d at

735.

30

See Pero’s Steak & Spaghetti House v. Lee, 90 S.W.3d at 625; Shadrick v. Coker, 963 S.W.2d at

735.

31

See Pero’s Steak & Spaghetti House v. Lee, 90 S.W.3d at 625; Shadrick v. Coker, 963 S.W.2d at

735.

32

Shadrick v. Coker, 963 S.W.2d at 735 (quoting Benton v. Snyder, 825 S.W.2d 409, 414 (Tenn.

1992)).

-29-

Turning to the three elements to be considered in the context of a statute of limitations

defense,33 there is no question in this case regarding the applicable statute of limitations or

the length of the limitations period. Even though Mr. Redwing’s complaint is less than

specific about when the alleged sexual abuse occurred,34 there is no dispute that Mr. Redwing

was a minor at the time. It is also undisputed that Mr. Redwing’s eighteenth birthday

occurred on August 18, 1978 and that, in accordance with Tenn. Code Ann. § 28-1-106, he

had one year35 from that date to file suit against Fr. Guthrie and any other person or entity

that caused the alleged abuse. There is likewise no dispute that Mr. Redwing did not file suit

against the Diocese until August 15, 2008 – almost twenty-nine years after the statute of

limitations would have expired.

These undisputed facts are sufficient, in and of themselves, to establish the Diocese’s

statute of limitations defense. Thus, the burden shifts to Mr. Redwing to demonstrate that

the allegations in his amended complaint are sufficient to articulate at least a colorable basis

for concluding that the statute of limitations has not run on his claims against the Diocese.

Taking the allegations in Mr. Redwing’s amended complaint in their best light, Mr. Redwing

counters the Diocese’s statute of limitations defense by asserting that the Diocese

fraudulently concealed its knowledge of Fr. Guthrie’s history and propensity for sexually

abusing minors and misled him and his parents into believing that it was unaware of Fr.

Guthrie’s conduct. As a result of the Diocese’s conduct, Mr. Redwing argues that he should

not be deemed to have discovered his claims against the Diocese. He also argues that

because of its conduct, the Diocese should be equitably estopped to assert a statute of

limitations defense.

The majority of the Court of Appeals, citing C.S. v. Diocese of Nashville, No. M2007-

02076-COA-R3-CV, 2008 WL 4426891, at *3 (Tenn. Ct. App. Sept. 30, 2008), perm. app.

denied (Tenn. Mar. 16, 2009) and Doe v. Catholic Bishop for Diocese of Memphis, 306

S.W.3d at 731 n.17, found that Mr. Redwing was on inquiry notice because he “knew he was

abused, knew the identity of the abuser, and knew the abuser was an employee of the

employer.” Redwing v. Catholic Bishop for Diocese of Memphis, 2010 WL 2106222, at *7.

33

As discussed in Section III, the three elements that must be considered with regard to a statute of

limitations defense include (1) length of the limitations period, (2) the accrual of the plaintiff’s claim, and

(3) the applicability of tolling doctrines.

34

The complaint states that the alleged acts occurred between 1972 and 1974.

35

Tenn. Code Ann. § 28-3-104(a)(1) (2000) provides for a one-year statute of limitations for personal

injury actions.

-30-

We take no issue with this conclusion.36 However, we depart from the majority and agree

with Judge Kirby that dismissing Mr. Redwing’s complaint for failure to exercise reasonable

diligence in pursuing these claims was premature.

A.

We turn first to Mr. Redwing’s equitable estoppel claim. As we have already noted,

the essence of an equitable estoppel claim when it is used to defeat a statute of limitations

defense is that the defendant intentionally induced the plaintiff to delay filing suit within the

time required by the statute of limitations. Fahrner v. S.W. Mfg., Inc., 48 S.W.3d at 145.

Accordingly, the claim necessarily presupposes that the plaintiff was aware of his or her

claim but put off pursuing it because of the defendant’s promises, suggestions, or

inducements that filing suit would be unnecessary.

The factual allegations in Mr. Redwing’s amended complaint are inconsistent with an

equitable estoppel claim. Mr. Redwing repeatedly asserts in his amended complaint that he

was unaware that he had a claim against the Diocese because the Diocese “misled” him and

his family. If we take these assertions as true, as we must, Mr. Redwing did not know that

he had a claim against the Diocese until after the statute of limitations ran on his claim. This

lack of knowledge, while not inconsistent with a fraudulent concealment claim, undermines

his equitable estoppel claim because knowledge of a claim against the defendant prior to the

running of the statute of limitations is a necessary ingredient of an equitable estoppel claim.

36

The Court of Appeals’ conclusion is in accord with the approaches adopted by courts in other

jurisdictions in addressing statute of limitations issues in similar cases. See e.g., Cevenini v. Archbishop of

Washington, 707 A.2d 768, 773 (D.C. 1998) (concluding that sexual abuse victims were on inquiry notice

of claims against the diocese where they knew the alleged abuser was a priest, that the priest was a

subordinate representative of the diocese, and abuse occurred on church premises); Mark K. v. Roman

Catholic Archbishop, 79 Cal. Rptr. 2d 73, 79 (Cal. Ct. App. 1998) (determining that knowledge that one was

abused by a priest and the priest was an employee of the diocese was sufficient to put an alleged sexual abuse

victim on inquiry notice of claims against the diocese); Doe v. Archdiocese of Washington, 689 A.2d 634,

644 (Md. Ct. Spec. App. 1997) (finding that an alleged victim of sexual abuse by a priest is on inquiry notice

of potential claims against the diocese based upon knowing that the abuser is a priest); Zumpano v. Quinn,

849 N.E.2d 926, 930 (N.Y. 2006) (concluding that sexual abuse victims were on inquiry notice of potential

claims against the Diocese because they “knew the identity of their abusers and that the abusers were

employed by the Diocese”); Doe v. Archdiocese of Cincinnati, 109 Ohio St.3d 491, 2006-Ohio-2625, 849

N.E.2d 268, at ¶¶ 28-34, (concluding that knowledge that one was abused by a priest and that the priest was

employed by the diocese puts an alleged sexual abuse victim on inquiry notice of claims against the diocese);

Colosimo v. Roman Catholic Bishop of Salt Lake City, 2007 UT 25, ¶ 50, 156 P.3d 806, 819 (Utah 2007)

(concluding that parochial school students were on inquiry notice with regard to potential claims against the

church diocese, archdiocese, religious order, and parochial school of the priest who abused them based upon

their knowledge that they were abused by a priest and the priest’s employment relationship with the various

institutional defendants).

-31-

B.

The majority of the Court of Appeals discounted the allegations in Mr. Redwing’s

complaint supporting his fraudulent concealment claim because they were conclusory and

insufficient to show that Mr. Redwing had exercised reasonable diligence in undertaking to

obtain information regarding his claims against the Diocese. Mr. Redwing’s amended

complaint contains numerous allegations against the Roman Catholic Church in general and

the Diocese in particular. With regard to the Roman Catholic Church, the complaint states

that

It is the practice of the Roman Catholic Church, through its

cardinals, bishops, priests and other officials and agents, to

conceal instances of child sexual abuse and complaints by

victims. [The Roman Catholic Church] zealously maintains the

secrecy of the horrifying truth of rampant child sexual abuse in

The Church, by among other things:

• Failing to disclose complaints to law enforcement

officials, parishoners and the public;

• Maintaining secret archives and files of evidence of sex

abuse, accessible only to the bishops;

• Instructing Church officials in destruction of

incriminating documents and spoliation of evidence

regarding sexual abuse by clergy;

• Transferring sex offending clergy to The Church

facilities in other locations where their pasts would not

be known to parishoners, and the abusers would have a

“fresh start” with a new group of vulnerable children;

• Threatening and coercing victims and their families to

withdraw complaints and retract allegations of sexual

abuse;

• Paying “hush money” to victims and their families, in

exchange for promises of non-disclosure and

confidentiality.

With specific regard to the Diocese, Mr. Redwing’s complaint alleges that

At the time that Mr. Redwing was abused by Father

Guthrie, Mr. Redwing and/or his family were unaware of the

Diocese’s knowledge of Father Guthrie’s sexual interest in

young boys. In fact, Mr. Redwing and/or his family were misled

-32-

by the Diocese with regard to the Diocese’s knowledge of

Father Guthrie’s history and propensity for committing sexual

abuse upon minors.

After finding out about Father Guthrie’s abuse of minors,

the Diocese actively took steps to protect Father Guthrie,

conceal the Diocese’s own wrongdoing in supervising Father

Guthrie, and prevent Norman Redwing and other victims of

Father Guthrie from filing civil lawsuits.

These allegations differentiate Mr. Redwing’s complaint from the complaints

apparently filed in C.S. v. Diocese of Nashville and Doe v. Catholic Bishop for Diocese of

Memphis. Mr. Redwing’s complaint contains allegations that both the Roman Catholic

Church and the Diocese knew, but covered up, the clergy’s sexual abuse of minors and that

the Diocese was aware that Fr. Guthrie sexually abused minors and misled Mr. Redwing and

his family about its knowledge and involvement. Considered in the light most favorable to

Mr. Redwing, the allegation that the Diocese misled Mr. Redwing and his family could be

construed to mean that at some point, Mr. Redwing or his family asked the Diocese about its

knowledge of Fr. Guthrie’s conduct and that the Diocese’s response misled them. The Court

of Appeals has correctly recognized that this circumstance could amount to fraudulent

concealment. Doe v. Catholic Bishop for Diocese of Memphis, 306 S.W.3d at 730 (stating

that “[h]ad the Diocese been asked about [the priest’s] prior offenses in 1987, we cannot

know whether the Diocese would have been forthcoming in response to such inquiries. As

in Cevenini,37 had [the plaintiff] requested such information and been refused, ‘our decision

might be different.’”).

For the purposes of both the discovery rule and the doctrine of fraudulent

concealment, the pivotal issue is whether Mr. Redwing would have discovered the Diocese’s

allegedly wrongful acts had he exercised reasonable care and diligence. See Sherrill v.

Souder, 325 S.W.3d at 595; In re Estate of Davis, 308 S.W.3d at 842; Teeters v. Currey, 518

S.W.2d at 516-17. We must, at least at this juncture, take the allegations in Mr. Redwing’s

complaint as true and draw all reasonable inferences in Mr. Redwing’s favor.

37

In its rejection of a sexual abuse victim’s fraudulent concealment claim, the District of Columbia

Court of Appeals stated that “[h]ad appellants requested information about [the priest’s] background from

the Archdiocese and been refused access to it, our decision might be different. However, we are unwilling

to hold that a failure to disclose information that has not even been requested constitutes fraudulent

concealment.” Cevenini v. Archbishop of Washington, 707 A.2d at 774. The court also noted that “[m]erely

talking to priests and nuns . . . can hardly be deemed a sufficient effort” and that “[d]ue diligence would have

required [the plaintiff] to seek out an Archdiocesan official.” Cevenini v. Archbishop of Washington, 707

A.2d at 774.

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Mr. Redwing is arguing, in essence, that the Diocese actively concealed its

involvement and that he had no reason to suspect that the Diocese was misleading him.

Accordingly, he insists that his inquiry of the Diocese itself was sufficient to constitute

reasonable diligence and that he was not required to file suit first and then engage in formal

discovery.

The issue of whether Mr. Redwing exercised reasonable diligence to discover his

claims against the Diocese is a question of fact. See Sherrill v. Souder, 325 S.W.3d at 596

(quoting Shadrick v. Coker, 963 S.W.2d at 737). At this stage of the proceeding, the facts

are limited to the allegations in Mr. Redwing’s amended complaint. The allegations

involving the Diocese’s active concealment of its knowledge of Fr. Guthrie’s activities and

its efforts to mislead Mr. Redwing could, if proven, provide a basis for a reasonable fact-

finder to conclude that Mr. Redwing, lacking any basis for suspecting that the Diocese would

deceive him, acted with reasonable diligence and, therefore, that he should not be held to

have known that the Diocese’s conduct caused him injury. They could also provide a basis

for a reasonable fact-finder to conclude that the Diocese fraudulently concealed its

knowledge of and responsibility for Fr. Guthrie’s conduct, thereby tolling the statute of

limitations.

Ultimately, the decisions regarding the Diocese’s alleged fraudulent concealment of

its knowledge of and responsibility for Fr. Guthrie’s conduct and Mr. Redwing’s diligence

in pursuing his claim against the Diocese will require further development of the facts

through discovery. The current record contains no information regarding (1) when and how

Mr. Redwing or his parents asked the Diocese about its knowledge of Fr. Guthrie’s conduct,

(2) the manner in which the Diocese misled Mr. Redwing or his parents, (3) the steps Mr.

Redwing took to pursue claims against Fr. Guthrie prior to Fr. Guthrie’s death, (4) when and

under what circumstances Mr. Redwing learned or should have learned about the public

accounts of the charges that the Roman Catholic Church was engaged in a systematic cover-

up of its knowledge of and responsibility for the acts of child abuse committed by its priests,

and (5) when and under what circumstances Mr. Redwing learned or should have learned that

the Diocese was engaging in the same conduct allegedly engaged in by the Roman Catholic

Church.

Because the Diocese has made out a prima facie statute of limitations defense, the

burden is on Mr. Redwing to demonstrate that his claims against the Diocese should not be

time-barred. Our denial of the Diocese’s motion to dismiss does not prevent the Diocese

from continuing to assert its statute of limitations defense or to again pursue this defense by

motion or otherwise once all the relevant facts are known. However, at this stage of the

proceeding, we find that the Court of Appeals erred by dismissing Mr. Redwing’s complaint

based on the running of the statute of limitations.

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V.

For the reasons discussed above, we conclude that the Court of Appeals correctly

determined that the trial court has subject matter jurisdiction over Mr. Redwing’s negligent

supervision claims against the Diocese but that the Court of Appeals erred by holding that

the trial court lacked subject matter jurisdiction over Mr. Redwing’s negligent hiring and

retention claims. Additionally, we find that the trial court has subject matter jurisdiction over

Mr. Redwing’s breach of fiduciary duty claim but caution that Mr. Redwing may not proceed

with this claim if it is based solely on duties that are either religious or inextricably

intertwined with religious duties. We also conclude that the Court of Appeals erred by

finding that the statute of limitations barred Mr. Redwing’s negligent hiring, retention, and

supervision claims against the Diocese. We remand this case to the trial court for further

proceedings consistent with this opinion. We also tax the costs of this appeal to the Diocese

of Memphis for which execution, if necessary, may issue.

______________________________

WILLIAM C. KOCH, JR., JUSTICE

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