## F I L E D United States Court of Appeals Tenth Circuit 

### JUN 25 1999 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

JOHN DEAN AYON,

Plaintiff - Appellant,

v. REVEREND MARSHALL GOURLEY; ROMAN CATHOLIC ARCHDIOCESE OF DENVER; MOST REVEREND CHARLES J. CHAPUT, His Predecessors and Successors, as Archbishop of the Roman Catholic Archdiocese of Denver,

Defendants - Appellees.

------------------------------ THE AMERICAN BAPTIST CHURCHES OF THE ROCKY MOUNTAINS; THE ASSOCIATION OF CHRISTIAN SCHOOLS INTERNATIONAL; BAPTIST JOINT COMMITTEE ON PUBLIC AFFAIRS; THE BISHOP AND DIOCESE OF COLORADO (PROTESTANT EPISCOPAL CHURCH IN THE UNITED STATES OF AMERICA); CHURCH OF JESUS CHRIST OF LATTER-DAY SAINTS; COLORADO BAPTIST GENERAL CONVENTION; THE COLORADO CATHOLIC CONFERENCE; COLORADO DISTRICT CHURCH OF THE NAZARENE; COLORADO MUSLIM SOCIETY; COLORADO SPRINGS ASSOCIATION OF EVANGELICALS; EVANGELICAL LUTHERAN CHURCH IN AMERICA; FIRST CHURCH OF No. 98-1305 (D. Ct. No. 97-S-1936) (D. Colo.)* This order and judgment is not binding precedent, except under the doctrines of

law of the case, res judicata, and collateral estoppel. This court generally disfavors the - 2 - CHRIST, SCIENTIST; GENERAL COUNCIL ON FINANCE AND ADMINISTRATION OF THE UNITED METHODIST CHURCH; INTERNATIONAL CHURCH OF THE FOURSQUARE GOSPEL; ISLAMIC SOCIETY OF COLORADO SPRINGS; MID-AMERICA UNION CONFERENCE OF SEVENTH-DAY ADVENTISTS; NEW LIFE CHURCH; PUEBLO ASSOCIATION OF EVANGELICALS; ROCKY MOUNTAIN CONFERENCE OF SEVENTH-DAY ADVENTISTS; ROCKY MOUNTAIN CONFERENCE OF THE UNITED METHODIST CHURCH; ROCKY MOUNTAIN OF THE LUTHERAN CHURCH-MISSOURI SYNOD; ROCKY MOUNTAIN PRESBYTERIAN (PRESBYTERIAN CHURCH IN AMERICA); ROCKY MOUNTAIN SYNOD, EVANGELICAL LUTHERAN CHURCH IN AMERICA; ROCKY MOUNTAIN YEARLY MEETING OF THE FRIENDS CHURCH; SOKA GAKKAI INTERNATIONAL-U.S.A. ROCKY MOUNTAIN REGION; SOLID ROCK CHRISTIAN CHURCH; THE UNITED STATES CATHOLIC CONFERENCE; WISCONSIN EVANGELICAL LUTHERAN SYNOD,

Amici Curiae.

ORDER AND JUDGMENT *citation of orders and judgments; nevertheless, an order and judgment may be cited under

the terms and conditions of 10th Cir. R. 36.3. - 3 - Before ANDERSON , TACHA , and KELLY , Circuit Judges.

Plaintiff John Dean Ayon brought this diversity act ion against Father Marshall Gourley, the Roman Catholic Archdiocese of Denver, and the Archbishop of Denver, alleging various tort theorie s stemming from Gourley’s purported sexual abuse of Ayon. The district courtgranted defendants’ motion to dismiss and for summary judgment. Plaintiff timelyappealed this decision. We have jurisdiction pursuant to 28 U.S.C. § 1291 and affirm. Background On September 8, 1997, Ayon commenced this suit agai nst the Archbishop, the Archdiocese, and one of its priests, Father Gou rley, in the United States District Court for the District of Colorado. Ayon’ s initial complaint alleged that Gourley engaged in improper sexual contact with himwhen he was a minor parishioner at the church to which Gourley was assi gned in Denver. Ayon claimed the sexual molestation and abuse occurred o n numerous occasions from June 1981 through June 1984. These facts supportedAyon’s claim of outrageous conduct against Gourley. Ayon also asserted claims of negligent hiring and supervision, outrageous conduct, breach of fiduciary duty, concert of action and- 4 -

conspiracy against the Archbishop and Archdiocese ( hereinafter collectively referred to as “Archdiocese”). The Archdiocese fil ed a motion to dismiss or for summary judgment on October 22, 1997, arguing that there were insufficient facts to support the outrageous conduct and joint liabili ty claims and that the statute of limitations and the Free Exercise and EstablishmentClauses of First Amendment barred all claims against it. Gourley filed a summ ary judgment motion on October 24, 1997, making a statute of limitations a rgument. On December 15, 1997, Ayon filed his response to de fendants’ motions and requested leave to amend his complaint to add a dditional facts. Those additional facts included an allegation that Gourle y sexually assaulted him in 1993. At a May 1, 1998 hearing, the court expresse d concern about plaintiff’s proposed first amended complaint changing and addin g facts to respond to defendants’ statute of limitations arguments. The court granted plaintiffs’ motion to withdraw the proposed first amended complaint an d to submit a new amended complaint. However, the court limited the scope of the amendment by prohibiting changes to the original complaint’s factual allegat ions. The district court stated: I will expressly exclude . . . , by striking, any a mendments which . . . seek to modify the factual allegations of the compl aint. I do not think that is a proper amendment. . . . For instance, the amended complaint presently filed attempts to modify certain dates with regard to actions which w ere originally alleged in the complaint for the apparent purpose o f responding to the statute of limitations problem. I will not all ow such amendments.- 5 -

If you have alleged a certain occurrence on a certa in date, I do not think it’s proper now in response to a summary judg ment motion that’s been filed by the defendants to amend those dates to cure the defects alleged in the summary judgment. Appellant’s App., Vol. III, at 774-75. Plaintiff o bjected to this limitation. Plaintiff subsequently filed a renewed motion for l eave to amend, along with a new amended complaint. The court granted in part and denied in part the renewed motion to amend. The court allowed amendme nts to the extent that they clarified or added claims. The amended complaint t herefore alleged claims of outrageous conduct and breach of fiduciary duty aga inst Gourley and claims of negligent hiring and supervision, outrageous conduc t, and vicarious liability against the Archdiocese. The court refused, howeve r, to allow any changes to factual allegations in the original complaint. To that end, it struck several factual assertions from the amended complaint, including anallegation of a 1993 attempted assault by Gourley, an allegation that ab use continued from the 1980s through 1993, and an allegation that plaintiff did not realize that Gourley’s alleged actions had caused him harm until he soughtpsychological counseling in July 1997. The court also noted that the amended c omplaint had omitted facts from the original complaint describing how plaintif f had suffered emotional distress from the alleged abuse constantly from the 1980s until the present. This omission and the new facts, the court concluded, we re designed to avoid the statute of limitations bar. Therefore, the court r uled that it would treat facts- 6 -

alleged in the original complaint as “judicial admi ssions.” Plaintiff did not object to such treatment. On July 15, 1998, the district court granted the Ar chdiocese’s motion to dismiss and defendants’ motions for summary judgment. The court held that the Free Exercise and Establishment Clauses of the Firs t Amendment barred Ayon’s negligence and outrageous conduct claims against th e Archdiocese because any inquiry into church hiring or employment of priests would interfere with the Archdiocese’s right to free exercise of religion an d excessively entangle the courts in church operations. The court also dismis sed the vicarious liability claims because plaintiff failed to properly plead t he Archdiocese’s ratification of Gourley’s conduct. On summary judgment, the court concluded that plaintiff’s causes of action for the alleged 1981-84 abuse accr ued prior to 1991. Under Colorado law, a cause of action accrues when the in jury and its cause are known or should have been known to the plaintiff. See Mastro v. Brodie , 682 P.2d 1162, 1168 (Colo. 1984). Because this suit was not fileduntil 1997, the court held the statute of limitations had run with respect to all claims against defendants and granted their summary judgment motions. Plaintiff argues four issues on appeal: (1) the Fir st Amendment does not bar suit against the Archdiocese for its allegedly tort ious actions; (2) he properly pled the vicarious liability claims; (3) the district co urt abused its discretion in- 7 -

allowing only partial amendment of the complaint an d treating facts from the original complaint as “judicial admissions;” and (4 ) even under the facts of the original complaint, the cause of action did not acc rue until 1997, thus bringing the action within the applicable statutes of limitation s. We find no error in the district court’s treatment of the complaint or its conclusion that all of plaintiff’s causes of action are barred by the applicable statu tes of limitations. Therefore, we need not address the First Amendment and vicario us liability questions.
Discussion
I. We review the district court’s grant of summary jud gment de novo, applying the same legal standard used by the distri ct court. See Byers v. City of Albuquerque 150 F.3d 1271, 1274 (10th Cir. 1998). Summary jud gment is appropriate “if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, i f any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” Fed. R. Civ. P. 56(c ). When applying this standard, we view the evidence and draw reasonable inferences therefrom in the light most favorable to the nonmoving party. See Byers , 150 F.3d at 1274. As the district court noted, the statute of limitat ions question turns on when plaintiff’s causes of action accrued. In order to fully evaluate the statute of- 8 -

limitations issue, we must first resolve what facts we may consider. Accordingly, we turn to the district court’s treatment of plaint iff’s amended complaint. “The decision to grant leave to amend a complaint, after the permissive period, is within the trial court’s discretion, Fed . R. Civ. P. 15(a), and will not be disturbed absent an abuse of that discretion.” Woolsey v. Marion Labs, Inc. , 934 F.2d 1452, 1462 (10th Cir. 1991). The district cou rt should deny leave to amend only when it finds “undue delay, undue prejudice to the opposing party, bad faith or dilatory motive, failure to cure deficiencies by amendments previously allowed, or futility of amendment.” Frank v. U.S. West, Inc. , 3 F.3d 1357, 1365 (10th Cir. 1993). However, untimeliness alone may be sufficie nt reason to deny leave to amend, “‘especially when the party filing the motio n has no adequate explanation for the delay.’” Pallottino v. City of Rio Rancho , 31 F.3d 1023, 1027 (10th Cir. 1994) (quoting Frank , 3 F.3d at 1365-66). Failure to include known fac ts in the original complaint may also constitute grounds for denial. See id. (citing State Distribs., Inc. v. Glenmore Distilleries Co. , 738 F.2d 405, 416 (10th Cir. 1984)). The district court in this case refused to allow co mplete amendment of the complaint for at least two reasons. First, it foun d the amendment would further delay the proceedings. Second, and more importantl y, the court expressed concern about plaintiff’s bad faith and dilatory mo tive. It found “by virtue of the nature of the amendments which are proffered here i n this amended complaint,- 9 -

that it is a rather lightly veiled attempt to avoid the allegations . . . and admissions which were made in previous complaints, which are u nfavorable to the plaintiff under the legal theories now expounded.” Appellant ’s App., Vol. III, at 808. The court placed some weight on plaintiff’s failure to explain the initial exclusion of the disputed facts, especially because plaintiff di d not claim the facts derived from newly discovered evidence. We find the distri ct court’s decision does not amount to an abuse of discretion. “‘A busy distric t court need not allow itself to be imposed upon by the presentation of theories seriatim.’” Pallottino , 31 F.3d at 1027 (quoting Freeman v. Continental Gin Co. , 381 F.2d 459, 469-70 (5th Cir. 1967)). Plaintiff’s inability to explain why he wa ited three months before seeking to add facts known to him at the time he filed his initial complaint, combined with the evidence of bad faith, support the district cou rt’s ruling on the amendment of the claim. See Panis v. Mission Hills Bank, N.A. , 60 F.3d 1486, 1495 (10th Cir. 1995); Pallottino , 31 F.3d at 1027; Frank , 3 F.3d at 1366. When the district court struck plaintiff’s new fact s from the amended complaint, it initially ordered the factual allegat ions from the original complaint added to the amended complaint. Soon thereafter, t he district court realized that “we are totally changing the amended complaint, and about the only way we could approach it would be to reamend – to come up with anew complaint.” Appellant’s App., Vol. III at 815. Rather than ord er another amended complaint,1 Plaintiff did object when the district court announced at the May 1, 1998 status

hearing that it would impose limitations on the plaintiff’s ability to change facts in the amended complaint. Therefore, he may properly challenge the district court’s amendment decision. However, at the June 19, 1998 motions hearing, plaintiff made no objection to the court’s decision to treat the facts in the original complaint as judicial admissions. - 10 - the district court suggested treating facts from th e original complaint as “judicial admissions” by the plaintiff. Plaintiff argues that the amended complaint superseded the original, making the court’s ruling on “judicial admissions” erroneous. However, plaintiff failed to make this argument to the district court or to object to the district court’s “judicial admissions” decision. 1 This court has repeatedly stated that: Generally, we will not consider an issue that was n ot raised and resolved in the trial court. We will consider matt ers not raised or argued in the trial court only in the most unusual circumstances, which may include issues regarding jurisdiction andsovereign immunity, . . . instances where public interest is implicated, . . . or where manifest injustice would result. Smith v. Rogers Galvanizing Co. , 128 F.3d 1380, 1385-86 (10th Cir. 1997) (internal quotation marks and citations omitted). Finding no extraordinary circumstances in this case, we hold plaintiff has w aived this argument on appeal. Therefore, like the district court, we shall consid er the facts as presented in plaintiff’s original complaint.
II. In a diversity case, we apply the substantive law, including the statutes of2Plaintiff claims the two-year statute of limitations set out in Colo. Rev. Stat. § 13-

80-102 applies to the Archdiocese defendants and the special six-year statute of limitations for sexual assaults, seeid. § 13-80-103.7, applies to Gourley. This is true if plaintiff’s causes of action accrued in 1997. However, if the causes of action accrued in the early 1980s, the applicable statutes of limitation at that time were six years for negligence and outrageous conduct claims pursuant to former Colo. Rev. Stat. § 13-80- 110, seeCassidy v. Smith , 817 P.2d 555, 557 (Colo. Ct. App. 1991), and five years for breach of fiduciary duty claims pursuant to former Colo. Rev. Stat. § 13-80-114, seeVan Schaack v. Van Schaack Holdings , Ltd. , 856 P.2d 15, 25 (Colo. Ct. App. 1992), aff’d , 867 P.2d 892 (Colo. 1994). Colorado significantly revised its statutes of limitations in 1986. - 11 - limitations, applicable under the law of the forum state. See, e.g. , Miller v. Armstrong World Indus., Inc. , 949 F.2d 1088, 1089 n.3 (10th Cir. 1991). The parties agree Colorado law governs this suit. Whil e there is some disagreement as to which statutes of limitations apply to the diffe rent parties, the dispositive issue is when plaintiff’s causes of action accrued. 2 Plaintiff claims they accrued in 1997 when he received counseling. Defendants argue they accrued in the 1980s when the alleged sexual contact occurred. We conclude that, under Colorado law, plaintiff’s c auses of action accrued in 1984, at the latest. Colorado law provides thatpersonal injury causes of action accrue “when the claimant has knowledge of facts wh ich would put a reasonable person on notice of the nature and extent of an inj ury and that the injury was caused by the wrongful conduct of another.” Mastro v. Brodie , 682 F.2d 1162, 1169 (Colo. 1984); cf. Colo. Rev. Stat. § 13-80-108(1) (adopting, after 1 986, the same rule announced in Mastro ). Plaintiff’s claimed injury is emotional distres s.- 12 -

Plaintiff contends that he did not connect the inju ry to its cause until his therapy in 1997. However, the facts in Ayon’s initial comp laint and affidavits, combined with the applicable Colorado law, dictate a contrary conclusion. In Cassidy v. Smith , 817 P.2d 555, 557-58 (Colo. Ct. App. 1991), two minor girls, ages fifteen and seventeen, were sexua lly abused by a close family friend. The girls knew the activity was “improper” and admitted feeling pain, despair, alienation, shame, confusion, and other em otional distress at the time.
See id. at 557. The plaintiffs asserted, however, that th ey were unaware of the damage resulting from the abuse until years later, after their mother confronted them about the sexual abuse and advised them to see k psychological counseling. Plaintiffs submitted personal affidavits as well as those from treating therapists regarding the delayed discovery of the cause of their psychological injuries. See id. Despite these affidavits, the court concluded that after the girls reached majority, “plaintiffs were aware of the wrongful nature of defendant’s acts and . . . they had sufficient knowledge concerning the exis tence of resulting psychological harm that the statute of limitations began to run when they achieved their majority.” Id. at 558. In finding plaintiffs aware of both injury and cause, the court implicitly rejected the theory now presented to this court by Ayon. See id. at 558 (Dubofsky, J., dissenting) (“The fact that plaintiffs experienced some initial psychological problems from having sexual r elationships with defendant- 13 -

does not, as a matter of law, give them notice thatthese relationships would result in subsequent serious psychological problems.”). Under Cassidy , Ayon knew or should have known the alleged sexual abuse was wrong and “had sufficient knowledge concerning the existence of resulting psychological harm,” id. at 558, at least in 1984, if not earlier. Ayon wa s sixteen when the alleged abuse began in 1981 and almost twe nty at the time of the last incident in June 1984. In his affidavit, he admits being “embarrassed, humiliated, ashamed and fearful about what happened” and claims to have blamed himself. Appellant’s App., Vol. I, at 313. He also claims G ourley threatened to kill him or his mother if he ever told anyone about the abuse. Additionally, the original complaint alleges: “From the dates of the abuse to the present, and largely because of his abuse, the Plaintiff has been contin ually subject to coercion, duress, religious duress, mental infirmity, disabil ity and unsound mind as to the facts, conditions and circumstances surrounding his sexual abuse.” Id. at 4. The alleged threat by Gourley, plaintiff’s recognition that he was embarrassed and fearful, and his acknowledgment that he blamed hims elf show Ayon knew the wrongfulness of the alleged abuse. Moreover, to th e extent Ayon claims repression of the wrongfulness of the alleged encounters with Gourley, we conclude, on these facts, that he should have knownthe wrongfulness of the acts. A reasonable plaintiff of nineteen who felt fear an d embarrassment and who- 14 -

allegedly received death threats stemming from the actions in question should have reasonably known of the wrongfulness of the ac tions. As for the injury, plaintiff admits that he suffered emotional distres s at the time of the alleged incidents of abuse. See id. Thus, as in Cassidy , plaintiff knew or should have known the wrongful nature of the act, the resulting injury, and the causal connection between the two. See Cassidy , 817 P.2d at 557-58. We therefore find that plaintiff’s causes of action accrued in 1984 a nd the applicable statute of limitations periods expired, at the latest, in 1990 . Plaintiff’s causes of actions against the defendants are barred. In his reply brief, plaintiff for the first time ma kes an argument that the statute of limitations for the negligent hiring/sup ervision claim against the Archdiocese did not begin to run until plaintiff kn ew or should have known that others had also been abused. We generally will notconsider issues raised for the first time in the reply brief. See Codner v. United States , 17 F.3d 1331, 1332 n.2 (10th Cir. 1994); Lyons v. Jefferson Bank & Trust , 994 F.2d 716, 724 (10th Cir. 1993). We decline to do so here. Finally, we refuse plaintiff’s entreaty to reconsider or disregard Cassidy in light of advances in understanding of abuse victims over the past decade. In this case, we are bound by Colorado law, and plaintiff p rovides no authority that3 Colorado amended its statute of limitations law in 1993 to provide a tolling of the

statute of limitations for persons under disabilities who suffer sexual assault, including those in a special relationship of trust who are “psychologically or emotionally unable to acknowledge the assault or offense and the harm resulting therefrom.” Colo. Rev. Stat. § 13-80-103.7(3.5)(a). The statutes of limitations ran on plaintiff’s claims prior to the new statute taking effect, and we express no opinion on whether this statute would have otherwise applied to plaintiff. - 15 - would call Cassidy into question. 3 Plaintiff’s supplemental authority, Sailsbery v. Parks , 1999 WL 107277 (Colo. Ct. App. Mar. 4, 1999), doe s little to affect our conclusion. In Sailsbery , plaintiff, who alleged sexual abuse by the defend ant from age eleven to eighteen, claimed repressed memo ry of the sexual abuse itself.
See id. at *1, *4. The court distinguished the case from Cassidy because Sailsbery claimed not to remember the incident, any injury, or the cause of the injury until she recovered that memory in therapy. See id. at *3. We note that Ayon makes no claim of repressed memory of the events forming the basis of his complaint. As a court sitting in diversity, we must apply the law as it exists in Colorado. Colorado law demands summary judgment infavor of defendants.- 16 -

Therefore, the district court’s order granting summ ary judgment is AFFIRMED.

ENTERED FOR THE COURT,

Deanell Reece Tacha Circuit Judge