Opinion
No. ED 84366
May 31, 2005
Appeal from the Circuit Court of the City of St. Louis, Honorable John J. Riley.
Joseph L. Bauer, Jr., St. Louis, Missouri, for Appellant.
Gerard Thomas Noce, Matthew W. Potter, St. Louis, Missouri, for Respondent.
Before George W. Draper III, C.J. (writer), Lawrence E. Mooney, J. (sat), Glenn A. Norton, J. (sat).
Michael Powel (hereinafter, "Powel") appeals from the trial court's grant of summary judgment in favor of Marianist Province of the United States and Chaminade College Preparatory, Inc. d/b/a Chaminade College Preparatory School (hereinafter and collectively, "Chaminade") for failure to file suit within the statute of limitations. Powel raises two points in this appeal, claiming he filed the underlying suit timely and Section 537.046 RSMo (2002) applies to Chaminade's intentional failure to supervise clergy. We agree and reverse.
All further references herein are to RSMo (2002) unless otherwise noted.
Powel was born on June 10, 1958. In late 1973 or early 1974, Powel became a boarding student at Chaminade College Preparatory, Inc. d/b/a Chaminade College Preparatory School (hereinafter, "CCP"). He was 15 to 17 years old while attending CCP.
Attorneys at oral argument informed this Court that Powel moved from Connecticut to be a boarding student at CCP.
In February 2000, Powel began receiving treatment for brain cancer. During these treatments, Powel regained his full recollection of childhood sexual abuse suffered as a boarding student at CCP. Powel first informed his wife in the spring of 2000, he was a victim of sexual abuse by two instructors, Father William Christensen (hereinafter, "Christensen") and Brother John J. Woulfe (hereinafter, "Woulfe") while attending CCP. Powel sought psychological therapy and treatment by a licensed clinical psychologist in 2001.
On June 2, 2002, Powel filed suit against Chaminade, Christensen, and Woulfe for damages resulting from childhood sexual abuse suffered as a boarding student. Powel alleged Christensen and Woulfe regularly and repeatedly engaged in unpermitted, harmful, and offensive sexual contact with him while he was a minor. Powel further alleged Chaminade intentionally failed to supervise its clergy. Powel believed his claim was not time barred because he filed suit within two years of discovering he had been abused as a minor.
Chaminade filed a motion for summary judgment, claiming Powel's suit was not filed within the statute of limitations. Chaminade argued Powel's psychologist's, Dr. Michael Greenburg (hereinafter, "Dr. Greenburg"), affidavit was an admission by Powel that he knew he was molested and remembered the abuse from its inception without the assistance of others. However, the trial court found this analysis by Chaminade was not accurate, and Dr. Greenburg's affidavit supports Powel's claim that he had no memory of the abuse until February 2000.
Powel responded to Chaminade's motion, claiming he involuntarily repressed his conscious memory of his sexual abuse and had no recollection or knowledge of abuse occurring before his eighteenth birthday until he regained his memory in February 2000. At his deposition, Powel testified that between 1974 and 1975 he was sexually assaulted and/or molested on numerous occasions by Woulfe and Christensen while living at CCP. Powel was subjected to acts including, inter alia, fondling, viewing an X-rated movie, oral sex, and anal sodomy. Accordingly, Powel contends he timely filed this action.
The trial court found both parties supported their differing fact scenarios in the summary judgment record. Additionally, the trial court stated the summary judgment record supported a genuine issue of material fact as to whether Powel involuntarily repressed his memory at the time of the abuse until February 2000, and a jury issue as to whether Powel's damage was capable of ascertainment before he recovered his memory. The trial court believed these issues were capable of defeating Chaminade's motion for summary judgment. Yet, Chaminade submitted, and the trial court agreed, H.R.B. v. Rigali, 18 S.W.3d 440 (Mo.App. E.D. 2000) controls this action; hence, summary judgment for failure to file within the statutorily prescribed time was granted in favor of Chaminade. This appeal follows.
In review of summary judgment, we review the record in the light most favorable to the party against whom the judgment was entered. ITT Commercial Finance v. Mid-America Marine, 854 S.W.2d 371, 376 (Mo. banc 1993). We accord the party against whom summary judgment was entered the benefit of every doubt. Green v. Washington University Medical Center, 761 S.W.2d 688, 689 (Mo.App.E.D. 1988). Summary judgment is intended to move the parties beyond the petition's allegations and determine if a material fact for trial exists. Martin v. City of Washington, 848 S.W.2d 487, 491 (Mo. banc 1993). Appellate review of the grant of summary judgment is purely a question of law and, hence, employs the same criteria as imposed by the trial court in its initial determination of the propriety of the motion. ITT Commercial Finance, 854 S.W.2d at 376.
Summary judgment will be granted as a matter of law to the moving party when there is no genuine issue as to any material fact. Rule 74.04(c)(3). The moving party bears the burden of establishing a right to judgment as a matter of law. Following the moving party's prima facie showing, summary judgment will be granted if the responding party fails to reply with specific facts showing a genuine issue of material fact exists for trial or with a demonstration that judgment as a matter of law is incorrect. Rule 74.04(e).
Powel raises two points on appeal addressing two different statutes of limitations. In his first point, Powel claims the trial court erred in granting Chaminade's motion for summary judgment because his memory of any abuse was repressed and once recovered, he took immediate steps to comply with the statute of limitations. Powel argues that his memory of the childhood sexual abuse he sustained was repressed until February 2000, and he timely filed this action under Sections 516.120(4) and 516.100. Hence, the trial court should not have issued its summary judgment in favor of Chaminade.
Powel's action for intentional failure to supervise is not enumerated in a specific statute; hence, this claim is governed by the five-year period allowed by Section 516.120(4). Whether Powel's claims were filed timely depends upon when his cause of action accrues for purposes of the statute of limitations. "[T]he cause of action shall not be deemed to accrue when the wrong is done or the technical breach of contract or duty occurs, but when the damage resulting therefrom is sustained and capable of ascertainment. . . ." Section 516.100.
The determination of when damages are capable of ascertainment is governed by an objective standard which is determined by the court. Sheehan v. Sheehan, 901 S.W.2d 57, 59 (Mo. banc 1995). "However, when contradictory or different conclusions may be drawn from the evidence as to whether the statute of limitations has run, it is a question for the jury to decide." Straub v. Tull, 128 S.W.3d 157, 159 (Mo.App.S.D. 2004) ( citing Lomax v. Swell, 1 S.W.3d 548, 552-53 (Mo.App.W.D. 1999)).
Powel's sexual abuse occurred while he was a minor. Accordingly, Chaminade claims the statute of limitations was tolled only until he reached the age of majority. Section 516.170. Once Powel reached the age of majority, Section 516.170 provides he would be allowed to bring his cause of action within five years from becoming twenty-one years old.
Chaminade posits Powel's claims are time barred because his damage was capable of being ascertained at the time he was subjected to the sexual abuse. Chaminade concludes Powel would have to file within five years of the age of majority, regardless of whether or not he had a conscious memory of any childhood sexual abuse pursuant to Section 516.170. Powel counters that his damage was not capable of ascertainment until he recovered his memory of the abuse in 2000, and therefore, he did not have to file until the cause of action accrued and he recovered his memory pursuant to Section 516.100.
The foundation of Chaminade's argument is H.R.B., 18 S.W.3d 440. The plaintiff in H.R.B. (hereinafter, "Plaintiff") filed suit, after recovering his repressed memories of childhood sexual assault, against Archbishop Justin Rigali (hereinafter, "Archbishop") of the Archdiocese of St. Louis on a claim of intentionally failing to supervise a priest. Id. at 442. Plaintiff testified while he was a student at a parochial day school, the priest committed overt, traumatic, painful, and violent acts of sexual abuse against him. Id. at 443. After these incidents, Plaintiff suppressed the memory of his pain and abuse. Id. at 444.
Plaintiff settled his claims against the priest and released him from further liability. H.R.B., 18 S.W.3d at 442.
The jury returned its verdict in favor of Plaintiff. Archbishop appealed, claiming Plaintiff's damages were capable of ascertainment at the time the childhood sexual abuse was perpetrated and his claim against Archbishop was time barred.Id. at 443. Archbishop believed the only exception which could toll the statute of limitations for Plaintiff was the "minority" exception, tolling the statute of limitations until Plaintiff reached the age of twenty-one. Id.; Section 516.170.
On appeal, this Court stated "there was no question of fact for a jury to decide because no contradictory or different conclusion could be drawn from the evidence." H.R.B., 18 S.W.3d at 443. The court believed "Plaintiff's damages were sustained and capable of ascertainment in 1964 when they occurred." Id. Thus, this Court surmised it was proper to reverse the jury verdict for Plaintiff's failure to file within the statutorily prescribed limits.
It is paradoxical for our court to hold a plaintiff must remember serious, traumatic injuries at the time of occurrence when that is the specific pre-requisite leading to repressed memories. See Doe v. Roe, 955 P2d 951, 958 (Ariz. 1998) ( citing Linda Williams, Recall of Childhood Trauma: A Prospective Study of Women's Memories of Child Sexual Abuse, 62 J. CONSULTING CLINICAL PSYCHOLOGY 1164 (1994)). Under this logic, a minor, incidental act could be repressed while the traumatic event must be remembered.
In the instant case, Chaminade argues that Powel, like Plaintiff in H.R.B., knew of his injury and damages when he was sexually assaulted as a student. Since Powel did not file suit as a minor or once he reached the age of majority, Chaminade argues this Court is obligated by the holding inH.R.B. to affirm the trial court's judgment. We disagree.
A petition for a minor child may only be instigated by one having legal custody of the minor. Section 454.130. The person having legal custody of a minor is in the best position to know or observe if there is a cognizable action. In this case, arguably, the school officials stand in loco parentis because Powell was a boarding student. Ironically, they would have been the adults who could have perceived or instigated immediate action after his sexual abuse and yet they are the ones now accused of failing to supervise its staff.
Generally, there are four events identified by statutes and case law which act as a "trigger" to the running of the statute of limitations:
the moment the defendant commits his wrong (the 'wrongful act' test); the moment the plaintiff sustains substantial injury or interference (the 'sustainment of injury' test); the moment that plaintiff's damages are substantially complete (the 'capable of ascertainment' test); or the moment the plaintiff first becomes aware that he [ sic] had been aggrieved (the so-called 'discovery' test).
Jepson v. Stubbs, 555 S.W.2d 307, 314 n. 6 (Mo. 1977) ( quoting Frederick Davis, Tort Liability and the Statutes of Limitation, 33 Mo.L.Rev. 171, 187-88 (1968)). Historically, Missouri has followed the "capable of ascertainment" test in order to determine when a cause of action accrues. Lewis v. Thompson, 96 S.W.2d 938, 945 (Mo.App. K.C. 1936) (distinguishing accrual of a cause of action at the time when it is capable of being ascertained and not merely when it occurs);Clohesy v. Century Electric Co., 142 S.W.2d 780, 785-86 (Mo.App. St.L. 1940) (declining to bar a patient's suit when there was substantial testimony in the record questioning the year which the patient's cause of action accrued because it was a question for the jury); Krug v. Sterling Drug, Inc., 416 S.W.2d 143, 149 (Mo. 1967) (noting a continuous coarse of action need not be the sole factor determining the statute of limitations and the rationale in allowing delayed injury cases caused by wrongful conduct is to allow a person to be aware a legal wrong has occurred and resulted in harm); Thorne v. Johnson, 483 S.W.2d 658, 661 (Mo.App. K.C. Dist. 1972) (expounding upon the legislative change of the statute to determine the time in which a cause of action accrues from 'when the wrong is done or the technical breach of contract or duty occurs' to the 'date upon which damages resulting are capable of ascertainment.'); L.M.S. v. N.M., 911 S.W.2d 703 (Mo.App.E.D. 1995) (finding allegations of childhood sexual abuse against father and failing to protect against mother did not accrue for purposes of the statute of limitations until daughter recovered her memory as an adult). Missouri courts apply the "capable of ascertainment" test to the exclusion of the other three tests to determine when a cause of action accrues. Section 516.100.
The Missouri Legislature added the "capable of ascertainment" language to Section 516.100 in 1919. See Thorne v. Johnson, 483 S.W.2d 658, 660 (Mo.App. K.C. Dist. 1972).
While the H.R.B. court properly articulated Missouri's rejection of the "discovery" test to determine when a cause of action accrues, its rationale seems to implicitly adopt the "sustainment of injury test" while ignoring nearly a century of precedent. H.R.B., 18 S.W.3d at 443. H.R.B. holds that any plaintiff who suffers a traumatic event immediately knows the damage it will cause him or her. Accordingly, the traumatic event triggers the running of the statute of limitations, regardless of whether or not the plaintiff remembers the event. There are similar cases in the Western District which also hold that an injury immediately accrues. See Harris v. Hollingsworth, 150 S.W.3d 85, 88 (Mo.App.W.D. 2004); Vandenheuvel v. Sowell, 866 S.W.2d 100 (Mo.App.W.D. 1994). This is not Missouri law. By the legislature's adoption of our current standard in 1919, an action does not accrue "when the wrong is done or the technical breach . . . occurs." Section 516.100. The court in H.R.B. erred in failing to apply the standards set forth by our legislature. Moreover, H.R.B., Hollingsworth, and Vandenheuvel all fail to follow our Missouri Supreme Court's opinion in Sheehan, holding that repressed memory can prevent the ascertainment of injury and therefore forestall the running of the statute of limitations. Hence, we choose to no longer follow the rationale in H.R.B. and its progeny as they contravene Missouri statutes and case law precedent. Further, pursuant to Rule 83.02, we certify this case for transfer to the Missouri Supreme Court because of its general interest and to clarify the differing case law in the appellate districts.
In this case, there was no evidence presented in the motion for summary judgment indicating Powel had any memory or knew he was being abused at the time it occurred. Yet, there was evidence that because of the traumatic abuse Powell suffered, his memory was repressed at the time of the abuse, and he had no recollection until his treatment for brain cancer. The trial court in Powel's case believed that Powel overcame the summary judgment motion by demonstrating genuine issues of material fact which would be a jury issue.
Dr. Greenburg's affidavit clearly states that Powel's "memory came back to him spontaneously without suggestion from a therapist or other person who had influence over him. . . ."
We agree with the trial court in that Powel has overcome Chaminade's summary judgment motion by demonstrating genuine issues of material fact. There are contradictory conclusions which could be made from the evidence presented in the summary judgment motion. Accordingly, the issue of when Powel's damages from his childhood sexual abuse were capable of ascertainment is a decision to be made by the jury. See Straub, 128 S.W.3d at 159. Point granted.
In his second point, Powel alleges the trial court erred in holding Section 537.046 does not apply to his claims for intentional failure to supervise clergy. Powel believes Section 537.046 allows for recovery of damages against Chaminade as a result of his childhood sexual abuse and the damages which resulted therefrom.
Section 537.046.2 allows a plaintiff to bring a civil action for
damages suffered as a result of childhood sexual abuse . . . within five years of the date the plaintiff attains the age of eighteen or within three years of the date the plaintiff discovers or reasonably should have discovered that the injury or illness was caused by child sexual abuse, whichever later occurs.
This statute allows minors who repress memories of sexual abuse and recover those memories as adults, an extended time in which to file suit against those who perpetrated the crimes against them. At this time, there is no Missouri precedent regarding whether failure to supervise a perpetrator is included in this statute.
Since we have decided that Powel's claims were filed timely under the general statute of limitations, this point is not at issue. We reserve our discussion as to whether Section 537.046 applies to a claim for intentional failure to supervise clergy to another more germane set of circumstances.
The judgment of the trial court is reversed.
Lawrence E. Mooney, J., and Glenn A. Norton, J., concur.