RENDERED: JULY 28, 2023; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2022-CA-0068-MR
WILL MCGINNIS APPELLANT
APPEAL FROM FAYETTE CIRCUIT COURT
v. HONORABLE THOMAS L. TRAVIS, JUDGE
ACTION NO. 02-CI-02278
DIOCESE OF COVINGTON APPELLEE
AND
NO. 2022-CA-0714-MR
WILL MCGINNIS APPELLANT
APPEAL FROM FAYETTE CIRCUIT COURT
v. HONORABLE THOMAS L. TRAVIS, JUDGE
ACTION NO. 22-CI-00387
ROMAN CATHOLIC DIOCESE OF
COVINGTON AND ROMAN
CATHOLIC DIOCESE OF
LEXINGTON APPELLEES
OPINION AND ORDER
AFFIRMING
** ** ** ** **
BEFORE: ACREE, CALDWELL, AND MCNEILL, JUDGES.
CALDWELL, JUDGE: Will McGinnis appeals from an order of the Fayette
Circuit Court denying his motion pursuant to CR1 60.02 and a separate order
granting a motion to dismiss. We affirm both orders. We further find sufficient
cause not to dismiss No. 2022-CA-0068-MR.
FACTS
In 1983, McGinnis was a student at Christ the King parish school in
Lexington. He was sexually abused by a parish priest while in the eighth grade
and in the summer following that school year. Ten years later, when McGinnis
was approximately twenty-five years old, he wrote a letter to the Bishop of the
Diocese of Lexington and informed the leader of the abuse he suffered eleven
years before. The Diocese of Lexington offered to provide counseling for
McGinnis, but he did not accept the offer.
In 2002, McGinnis filed a complaint against both the Diocese of
Covington and the Diocese of Lexington seeking compensation for the sexual
abuse he suffered by the priest who had been transferred to the Diocese of
1
Kentucky Rules of Civil Procedure.
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Lexington from the Diocese of Covington when the former was created.2 The
Fayette Circuit Court dismissed the suit within weeks of its filing, finding that it
was filed outside the applicable statute of limitations.3 That determination was
2
The Diocese of Lexington was established in 1988 by Pope John Paul II. The Diocese was
formed from parts of the Archdiocese of Louisville and the Diocese of Covington. See Connelly,
Allison and Sparks, Andrew; Part I, Independent Investigation of Diocese of Lexington
Regarding The Protection of Children and Young People by Catholic Clergy, August 14, 2020,
https://www.bishop-accountability.org/diocesan_lists/Lexington/2020_08_17_Lexington_
Report_Update.pdf (last accessed Jul. 24, 2023).
3
A civil action for damages suffered as a result of child sexual abuse or assault shall be brought
before the expiration of the latest time periods specified in KRS 413.249(2):
(a) Within five (5) years of the commission of the act or the last of a series of acts
by the same perpetrator;
(b) Within five (5) years of the date the victim knew, or should have known, of
the act; or
(c) Within five (5) years after the victim attains the age of eighteen (18) years.
KRS 413.249(2) as it was enacted at the time McGinnis’ suit was filed in 2002. The statute has
since been amended several times and reads as follows at the time of the issuance of this
Opinion:
A civil action for recovery of damages for injury or illness suffered as a result of
childhood sexual assault or abuse shall be brought before whichever of the following
periods last expires:
(a) Within ten (10) years of the commission of the act or the last of a series of
acts by the same perpetrator;
(b) Within ten (10) years of the date the victim knew, or should have known,
of the act;
(c) Within ten (10) years after the victim attains the age of eighteen (18)
years; or
(d) Within ten (10) years of the conviction of a civil defendant for an offense
included in the definition of childhood sexual assault or abuse.
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affirmed by this Court on appeal. See McGinnis v. Roman Catholic Diocese of
Covington, No. 2002-CA-001610-MR, 2003 WL 22111094 (Ky. App. Sep. 12,
2003) (McGinnis I).
In that opinion, this Court discussed the case of Roman Catholic
Diocese of Covington v. Secter, wherein this Court held that when a defendant has
been shown to have obstructed “the prosecution of a cause of action” the statute of
limitations might be tolled to account for such obstruction. 966 S.W.2d 286, 290
(Ky. App. 1998). In that first appeal, this Court determined that tolling was not
proper in McGinnis’ case because he made no allegation the Diocese of Covington
concealed any sexual abuse of minors by the priest he accused of abusing him.4
4
In bringing a cause of action for personal injury such as in this
case, the statute of limitations may be tolled where the defendant
absconds, conceals himself, or “by any other indirect means
obstructs the prosecution of the action[.]” KRS 413.190(2).
“Obstruction might also occur where a defendant conceals a
plaintiff’s cause of action so that it could not be discovered by the
exercise of ordinary diligence on the plaintiff’s part.” Rigazio [v.
Archdiocese of Louisville, 853 S.W.2d 295, 297 (Ky. App. 1993)].
The Diocese clearly obstructed the prosecution of Secter’s cause of
action against it by continually concealing the fact that it had
knowledge of Bierman’s problem well before the time that Secter
was abused as well as the fact that it continued to receive reports of
sexual abuse of other students during part of the time period in
which Secter was abused.
Furthermore, “where the law imposes a duty of disclosure, a failure
of disclosure may constitute concealment under KRS 413.190(2),
or at least amount to misleading or obstructive conduct.” Munday
v. Mayfair Diagnostic Lab., Ky., 831 S.W.2d 912, 915 (1992).
KRS 199.335, the statute in effect when these incidents occurred,
imposed a legal duty on any person to report child abuse to law
enforcement authorities. The Diocese failed to comply with this
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In 2005, McGinnis filed a motion in the Fayette Circuit Court
pursuant to CR 60.02. In that motion, he argued the trial court erred in not
considering evidence concerning the removal of the priest possessed by the
Diocese of Lexington as well as a letter he had received; said letter having alleged
that the priest who abused him had been abused by a priest as a child and that the
Diocese of Covington should have known such abuse would predispose the priest
to abuse others. The trial court found the letter did not support a finding that the
Diocese of Covington had any knowledge of the background of the priest who
abused him and denied the motion. This Court affirmed, finding the circuit court
did not abuse its discretion in denying CR 60.02 relief. See McGinnis v. Roman
Catholic Diocese of Covington, No. 2006-CA-000101-MR, 2007 WL 29641 (Ky.
App. Jan. 5, 2007), as modified (Jan. 19, 2007) (McGinnis II).
In 2021, more than fourteen years after this Court rendered McGinnis
II, McGinnis filed a second motion pursuant to CR 60.02 once again seeking to
reopen the 2002 lawsuit. McGinnis based his motion on a report compiled by
Professor Allison Connelly of the University of Kentucky Rosenberg College of
Law and Andrew Sparks of the Dickinson-Wright law firm in Lexington.
duty, and such failure constitutes evidence of concealment under
KRS 413.190(2). (Footnote omitted).
Secter, 966 S.W.2d at 290.
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Professor Connelly and Mr. Sparks investigated and filed the report at the behest of
the Diocese of Lexington. Their investigation was an independent review of the
Diocese’s files and records before “releasing the names of priests against whom
one or more allegations of sexual abuse have been found to be substantiated or
credible.” The report revealed that the Diocese of Lexington had no paperwork in
its files concerning a priest who had previously served in the Diocese of Covington
before the creation of the Diocese of Lexington, and who was found to have
substantiated allegations of child sexual abuse.
Believing documentation existed which supported his allegation that
the Diocese of Covington was aware of his alleged abuser’s background, McGinnis
argued that such documentation was removed from the files and that such action or
conduct would justify tolling of his claim because it constituted concealment or
obstruction per the Secter case. Professor Connelly filed an affidavit in the Fayette
Circuit Court in which she clarified that the priest McGinnis accused was not one
of the priests whose file appeared to be incomplete. On the basis of that affidavit,
the trial court denied the motion and McGinnis filed this appeal.
Within weeks of the entry of the order denying the CR 60.02 motion,
McGinnis filed a separate action making the same allegations of abuse and naming
the Dioceses of Covington and Lexington as defendants. Both Dioceses filed
motions to dismiss the matter. The trial court granted the Dioceses’ motions,
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finding any claims made in McGinnis’ motion were barred by the doctrine of res
judicata. McGinnis appeals that determination.
Both matters are now before this Court. Having reviewed the records,
the orders, and the briefs of the parties, we affirm the circuit court in both cases.
STANDARD OF REVIEW
This Court reviews denials of CR 60.02 motions for an abuse of
discretion.
Our standard of review for a trial court’s denial of a CR
60.02 motion is abuse of discretion. Fortney v. Mahan,
302 S.W.2d 842, 843 (Ky. 1957). The test for abuse of
discretion is whether the trial court’s decision is arbitrary,
unreasonable, unfair, or unsupported by legal principles.
Goodyear Tire & Rubber Co. v. Thompson, 11 S.W.3d
575, 581 (Ky. 2000).
Lawson v. Lawson, 290 S.W.3d 691, 693-94 (Ky. App. 2009).
The granting of a motion to dismiss is reviewed de novo. “We review
a circuit court’s ruling on a motion to dismiss . . . de novo, owing no deference to
the circuit court on a question of law. Fox v. Grayson, 317 S.W.3d 1, 7 (Ky.
2010).” Greissman v. Rawlings and Associates, PLLC, 571 S.W.3d 561, 565 (Ky.
2019).
ANALYSIS
Because there are two orders of the circuit court being appealed
herein, we will discuss the orders separately.
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A. Order on CR 60.02 Motion
The first of the two orders from which McGinnis appeals is the order
of the trial court denying his CR 60.02 motion, which he filed in October of 2021.
It must be remembered that the action which McGinnis sought to reopen was filed
in 2002 alleging actions which occurred in the mid-1980s.
McGinnis relied upon the report of Connelly and Sparks,
commissioned by the Diocese of Lexington. He alleged the report indicated that
the investigation conducted uncovered the failure of the Diocese of Covington to
turn over any personnel papers concerning priests who served parishes in that
Diocese when the Diocese of Lexington was created and carved out of the Diocese
of Covington and the Archdiocese of Louisville. McGinnis alleged the priest who
sexually abused him (which allegation was recognized as substantiated in the
report) was one of those priests and argued that such failure to turn over personnel
papers was indicative of obstruction on the part of the Diocese of Covington.
Professor Connelly provided an affidavit that the priest found to have
sexually abused McGinnis was not one of the priests for whom no personnel
papers were provided to the new Diocese of Lexington by the Diocese of
Covington. On the basis of that evidence, and with McGinnis’ providing no
evidence whatsoever of his allegation that the Diocese of Covington intentionally
covered up any knowledge that the priest was abusive, the trial court denied his
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motion to reopen his 2002 complaint. As previously referenced, in McGinnis I,
this Court indicated that Secter provided a basis for tolling the statute of limitations
when the defendant could be shown to have obstructed the prosecution of a case or
acted to conceal evidence which would provide support for a complaint. McGinnis
made this allegation in his first CR 60.02 motion and the circuit court held he
failed to provide sufficient evidence that any concealment or obstruction on the
part of either Diocese had occurred; this Court affirmed that holding. Apparently
hoping the Connelly and Sparks Report would provide sufficient evidence,
McGinnis filed a successive CR 60.02 motion. The trial court, however, after
holding a hearing and reviewing the matter, determined there was no evidence of
concealment or obstruction as to the priest McGinnis accused, and denied the
relief.
The standard of review here remains the same as it was in 2007 when
this Court found the trial court did not abuse its discretion in not finding sufficient
evidence of obstruction or concealment to necessitate tolling the statute of
limitations. We reach the same conclusion. It was not an abuse of discretion for
the trial court to deny the CR 60.02 motion because there was no evidence that
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either Diocese acted to conceal or obstruct, which might form a basis for tolling.
We affirm the decision of the Fayette Circuit Court.5
b. Order on Motions to Dismiss
Following the denial of his CR 60.02 motion, and after filing the
notice of appeal challenging that denial, McGinnis filed a complaint seeking the
same relief as he had sought in McGinnis I. Counsel for both Dioceses filed
motions to dismiss with the Diocese of Lexington citing the statute of limitations
and the Diocese of Covington citing res judicata. The trial court granted both
motions to dismiss. The court held the subsequent complaint was barred by claim
preclusion, finding that the parties and claims were the same in both actions and
that the matter had been resolved on the merits previously.
As the granting of a motion to dismiss is reviewed de novo, we need
not give any deference to any determinations of the trial court. We agree,
however, that the claims against both Dioceses were barred by claim preclusion.6
5
The Diocese of Covington also argues that pursuant to CR 73.03(1), McGinnis failed to include
an indispensable party when he did not include the Diocese of Lexington on the notice of appeal
after naming them in the original complaint and in the motion being appealed. Because we have
found that the trial court did not err in denying the relief, we have determined to not dismiss this
appeal for the failure to include the Diocese of Lexington. See Cates v. Kroger, 627 S.W.3d 864,
875 (Ky. 2021) (“To be clear, we strongly caution future litigants to be more careful in the future
as jurisdictional defects are almost always fatal. But today because the party unmentioned was
aware of the arguments raised, received notice, and was not prejudiced we have chosen to look
past this flaw.”).
6
Res judicata consists of both claim preclusion and issue preclusion. The doctrine
of claim preclusion requires identity of the parties, identity of the causes of action,
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McGinnis brought an action alleging the same causes of action against the same
defendants and those claims were previously decided on the merits in that it was
determined that the claims were barred by the statute of limitation.
Res judicata, being the older term, is also sometimes
thought of as an umbrella doctrine that contains within it
both claim and issue preclusion. See, e.g., Yeoman v.
Com., Health Policy Bd., 983 S.W.2d 459, 464-65 (Ky.
1998) (“The doctrine of res judicata is formed by two
subparts: 1) claim preclusion and 2) issue preclusion.”).
Claim preclusion “is synonymous with res judicata in its
strict sense.” Bryan A. Garner, A Dictionary of Modern
Legal Usage 159 (2d ed.1995). Nevertheless, the term
“claim preclusion” is often preferable to the term “res
judicata,” if only for the sake of clarity and to use a term
that parallels “issue preclusion.” See, e.g., Yeoman, 983
S.W.2d at 465 n.2 (“In this opinion we employ the term
claim preclusion to refer to the doctrine which bars
subsequent litigation of a cause of action which has
previously been adjudicated. The term issue preclusion
is employed to refer to the doctrine which prohibits
issues which were adjudicated in a previous lawsuit from
being relitigated in a subsequent lawsuit. Res judicata is
the Latin term which encompasses both issue and claim
preclusion and is not to be used as synonymous with
either individually, but rather equally with both.
Collateral estoppel is a term used by some to refer to
issue preclusion, but for simplicity’s sake, we shall not
use it in this opinion.”); see also Allen D. Vestal, The
Constitution and Preclusion/Res Judicata, 62 Mich.
L.Rev. 33, 33-34 (1963-64) (urging use of the terms
and a resolution of the action on the merits. Issue preclusion bars parties “from
relitigating any issue actually litigated and finally decided in an earlier action.”
As stated by the Kentucky Supreme Court, res judicata “is basic to our legal
system and stands for the principle that once the rights of the parties have been
finally determined, litigation should end.”
Jellinick v. Capitol Indem. Corp., 210 S.W.3d 168, 171-72 (Ky. App. 2006) (citations omitted).
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claim and issue preclusion). As used below, especially in
quotations from earlier decisions, res judicata is used
primarily to mean claim preclusion.
Res judicata, in the sense of claim preclusion, “is basic to
our legal system and stands for the principle that once
rights of the parties have been finally determined,
litigation should end.” Slone v. R & S Mining, Inc., 74
S.W.3d 259, 261 (Ky. 2002). Or as the term has been
more thoroughly defined:
“[T]he doctrine of res judicata prevents the
relitigation of the same issues in a subsequent
appeal and includes every matter belonging to the
subject of the litigation which could have been, as
well as those which were, introduced in support of
the contention of the parties on the first appeal.”
Huntzinger v. McCrae, 818 S.W.2d 613, 615 (Ky. App.
1990) (quoting Burkett v. Board of Ed. of Pulaski
County, 558 S.W.2d 626, 627-28 (Ky. App. 1977))
(alteration in original). The very purpose of the doctrine
of res judicata is to preclude repetitious actions. Harrod
v. Irvine, 283 S.W.3d 246, 250 (Ky. App. 2009). Three
elements must be met for the rule to apply: (1) there
must be an identity of parties between the two actions;
(2) there must be an identity of the two causes of action;
and (3) the prior action must have been decided on the
merits. Id.
Miller v. Administrative Office of Courts, 361 S.W.3d 867, 871-72 (Ky. 2011).
CONCLUSION
We affirm the orders of the trial court dismissing the CR 60.02 action
for failure to provide any evidence of weight that the Diocese of Covington acted
to obstruct the litigation and conceal evidence which may have supported tolling
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the statute of limitations. Further, we find the trial court properly dismissed the
successive complaint against the Dioceses of both Covington and Lexington as the
claims were barred by the doctrine of res judicata.
ALL CONCUR.
ENTERED: _July 28, 2023____
JUDGE, COURT OF APPEALS
BRIEFS FOR APPELLANT: BRIEFS FOR APPELLEE DIOCESE
OF COVINGTON:
Will McGinnis, pro se
Lexington, Kentucky Mark D. Guilfoyle
Nicholas C. Birkenhauer
Covington, Kentucky
BRIEF FOR APPELLEE DIOCESE
OF LEXINGTON:
Melanie J. Kilpatrick
Lexington, Kentucky
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