Florez v. Sargeant

Decision Date16 May 1996
Docket NumberNos. CV-94-0454-P,CV-94-0495-PR,s. CV-94-0454-P
Citation185 Ariz. 521,917 P.2d 250
Parties, 64 USLW 2762 Laurence FLOREZ, Petitioner, v. Honorable William P. SARGEANT, III, a Judge for the Superior Court of the State of Arizona, County of Maricopa, Respondent Judge, and Ramon GOMEZ, Real Party in Interest. Clarence Russell DUNCAN and Mary Justice Duncan, individually and as husband and wife, Petitioners, v. Hon. Alan S. KAMIN, a Judge, Superior Court of the State of Arizona, in and for the County of Maricopa, Respondent Judge, Melissa MOONSHADOW, Real Party in Interest.
CourtArizona Supreme Court
OPINION

MARTONE, Justice.

These are tort actions consolidated for argument and opinion in which the only issue is whether they are barred by the statute of limitations. We conclude that they are.

I. Florez

Gomez, now 30 years old, claims that 18 years ago when he was about 12, Florez, then a priest, molested him. This was between 1978 and 1980. Gomez then led a nomadic life as a stripper and prostitute. Twelve years later, in 1990, he claims to have remembered these incidents and reported the abuse to a priest in late 1990, who then informed the Diocese of Phoenix. Gomez Affidavit at 4. On December 21, 1990, Gomez was interviewed by Diocesan lawyer, Ernest Calderon. Gomez said that his own lawyer, Kenneth Buford, consented to the interview without his presence. At that interview, Gomez said:

A lot of people ask you this one question. It may be floating through your mind as well. You ask me why did you take so long to come up and say something else. Well I'll tell you this. I couldn't deal with it. I didn't have no one to turn to. I wasn't ready to come up and talk about it, now I am. Now I'm able to deal with it.

Transcript of Gomez interview at 11 (emphasis added).

On May 17, 1991, Calderon wrote to Gomez and his lawyer, Kenneth Buford, indicating that after investigation, the Diocese had concluded that Gomez's claim was without merit. He also informed Gomez of the two year statute of limitations under A.R.S. § 12-542 and that it was the position of the Diocese that the statute had run. On June 27, 1991, Gomez's new lawyer, Craig Zirbel, wrote Calderon that his office was investigating the matter and reviewing the statute of limitations issue. Mr. Zirbel indicated that Gomez had also retained a Minnesota lawyer, Jeff Anderson, who specialized in sexual abuse cases against priests.

Gomez filed an action against Florez on June 30, 1993. Gomez moved for summary judgment on the statute of limitations defense arguing that it was tolled because (1) he was of unsound mind within the meaning of A.R.S. § 12-502, (2) he was under duress, (3) his memory was repressed, and (4) he did not connect the sexual abuse to his injuries until within two years of filing the action. Florez filed a cross-motion for summary judgment on the statute of limitations defense. Concluding that there was an issue of fact, the trial judge denied both motions. Florez filed a petition for special action, but the court of appeals declined jurisdiction. Believing that this was one of those rare cases that justified extraordinary relief, we granted Florez's petition for review.

In support of his motion for summary judgment, Gomez submitted the affidavits of two experts indicating that he suffered from post-traumatic stress disorder, depression sexual identity problems, and other problems indicating an unsound mind.

II. Duncan

Melissa Moonshadow was born in 1955. She alleges that her father abused her from the age of 6 until the age of 17. The abuse alleged is of the most perverse and criminal sort. Among other things, she claims that he raped her, kicked her, mutilated her, and even penetrated her with various physical objects. She claims that he threatened her with injury or death, if she told of the abuse. The last time her father physically abused her was in June of 1989.

On July 16, 1993, Moonshadow filed this action. Duncan, Moonshadow's father, moved for summary judgment arguing that the action was barred by the two year statute of limitations under A.R.S. § 12-542. Moonshadow responded with an affidavit from her counsellor that she suffered from post-traumatic stress disorder, which prevented her from confronting her father through litigation. The counsellor, however, admitted at her deposition that Moonshadow was always capable of managing her own personal affairs from the time she reached her majority, was fully aware of the fact that her father sexually assaulted her as a child, and discussed with her in October of 1989 the possibility of joining her sister in a civil action against her father. The trial court granted Duncan's motion for summary judgment, but then granted Moonshadow's motion to reconsider, not because he found evidence of unsound mind, but because he thought the doctrine of equitable estoppel would prevent the use of the statute of limitations as a defense under these circumstances. Duncan then filed a petition for special action in the court of appeals, which declined jurisdiction. Believing that this case ought to be considered with the Florez case, we granted review.

III. Analysis

We acknowledge that special action relief from the denial of summary judgment is almost always inappropriate. But we also acknowledge that in the rare extraordinary case, special action relief may be the only way to avoid the very harms a particular defense was intended to prevent. Because this is one of those cases, we granted review.

It is undisputed on this record that, unless tolled, the statutes of limitations have expired. Gomez's injuries occurred when he was under 18. The two year statute of limitations under § 12-542 was tolled during his minority under § 12-502(A) until he turned 18 in 1983. Thus, unless further tolled for some reason, the statute of limitations expired in 1985, some 8 years before he filed his action. Similarly, the bulk of Moonshadow's claim relates to events that occurred before she was eighteen. The two year statute was tolled until 1973, and those claims would have expired in 1975. She brought her action in 1993, 18 years later. Some of her claims relate to matters alleged to have occurred as late as 1989, but this is still more than two years before she filed her action. Thus, like Gomez, unless there is some doctrine under which tolling occurred, her claims are barred.

Both Gomez and Moonshadow argue that their psychological disorders, particularly post-traumatic stress disorder, operated to prevent them from bringing their actions in time. The legislature has specifically addressed the role of the mind on the tolling of the statute of limitations. A.R.S. § 12-502(A) provides as follows:

if a person entitled to bring an action ... is at the time the cause of action accrues ... of unsound mind, the period of such disability shall not be deemed a portion of the period limited for commencement of the action.

The section heading refers to unsound mind as "insanity." Although section headings are not law, A.R.S. § 1-212, they can help to resolve ambiguities. Garrison v. Luke, 52 Ariz. 50, 56, 78 P.2d 1120, 1123 (1938); Arizona Found. for Neurology & Psych. v. Sienerth, 13 Ariz.App. 472, 475, 477 P.2d 758, 761 (1970); see also Fleming v. Black Warrior Copper Co., 15 Ariz. 1, 8, 136 P. 273, 275 (1913) (demurrer to complaint alleging "Knox was insane" overruled because that was an allegation of unsound mind). While we have never expressly addressed the definition of "unsound mind" within the meaning of the statute, our cases refer to it as insanity. Western Coal and Min. Co. v. Hilvert, 63 Ariz. 171, 183, 160 P.2d 331, 336 (1945). Indeed, this very term, we described the disability for "unsound mind" under § 12-502(A) as one for "incompetents" and "persons who are insane." Vega v. Morris, 184 Ariz. 461, 463-64, 910 P.2d 6, 8-9 (1996).

The court of appeals, however, has squarely addressed the question. Allen v. Powell's Int'l, Inc., 21 Ariz.App. 269, 270, 518 P.2d 588, 589 (1974). In that case, a person injured in an automobile accident brought his claim more than two years after it accrued. The defendant moved for summary judgment. The plaintiff claimed that the statute tolled because he was of unsound mind as a result of the accident. He complained of depression and was concerned about his emotional condition. But he also went to graduate school, and resumed his work as a teacher. He continued to function as a teacher and carried out his regular day-to-day personal and business affairs, notwithstanding his concern about his emotional condition. The court of appeals affirmed the grant of summary judgment. It concluded that "a person of 'unsound mind,' as used in this setting, has been interpreted to mean that such a person is unable to manage his affairs or to understand his legal rights or liabilities." Id. at 270, 518 P.2d at 589. Division Two followed the Allen case in Nelson v. Nelson, 137 Ariz. 213, 215-16, 669 P.2d 990, 992-93 (App.1983). Indeed, Division Two understood this to be "incompetency." Id.

We agree with both divisions of our court of appeals. The focus of the unsound mind inquiry is on a plaintiff's ability to manage his or her ordinary daily affairs. It does not focus on the plaintiff's ability to pursue the subject matter of the litigation at issue. This is consistent with cases elsewhere. See, e.g., Doe v. Coffee County Bd. of Educ., 852 S.W.2d 899 (Tenn.Ct.App.1992); Hildebrand v. Hildebrand, 736 F.Supp. 1512 (S.D.Ind.1990); ...

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