H.R.B. v. J.L.G., 68010

• Citation: 913 S.W.2d 92
• Decision Date: 19 December 1995
• Docket Number: No. 68010,68010
• Parties: 106 Ed. Law Rep. 415 H.R.B. and B.B., Plaintiffs/Appellants, v. J.L.G., and Archbishop Justin Rigali of the Archdiocese of the City of St. Louis, Missouri, and Church of the Immaculate Conception School and Parish, by and through Father John Gavin, Defendants/Respondents.
• Court: Court of Appeal of Missouri (US)

Page 92

913 S.W.2d 92

106 Ed. Law Rep. 415

H.R.B. and B.B., Plaintiffs/Appellants, v. J.L.G., and Archbishop Justin Rigali of the Archdiocese of

the City of St. Louis, Missouri, and Church of the

Immaculate Conception School and Parish, by and through

Father John Gavin, Defendants/Respondents.

No. 68010.

Missouri Court of Appeals,

Eastern District.

Dec. 19, 1995.

Rebecca M. Randles, Kansas City, for appellants.

Barry A. Short, John Michael Hessel, Lewis, Rice & Fingersh, St. Louis, Gerard Thomas Noce, Evans & Dixon, St. Louis, for respondent.

GARY M. GAERTNER, Judge.

Appellants, H.R.B. ("plaintiff") and B.B. ("wife"), appeal from the judgment of the Circuit Court of the City of St. Louis dismissing their petition against respondents, J.L.G. ("defendant"), Archbishop Justin Rigali of the Archdiocese of St. Louis, Missouri ("the archbishop"), and Church of the Immaculate Conception School and Parish ("the church"). We affirm in part and reverse and remand in part.

On September 30, 1994, plaintiff and wife filed a ten-count petition alleging the following: In 1963, plaintiff was a thirteen-year-old student at a school run by the church, which was under the direct supervision and control of the archbishop. Through 1963 and 1964, plaintiff suffered various instances of sexual abuse by defendant J.L.G., a Roman Catholic priest employed by the church. As a direct result of defendant's conduct, plaintiff suffered, inter alia, severe emotional distress, lost earnings and earning capacity, sexual addiction and dysfunction, depression, anxiety, panic attacks, "and other psychological and emotional sequelae."

The petition further alleged:

15. Plaintiff and defendant ... had a confidential and/or fiduciary relationship. The power imbalance between defendant ... and plaintiff increased the plaintiff's vulnerability to defendant ... and had the effect of silencing plaintiff.

16. The nature of the relationship and the sexual exploitation perpetrated upon plaintiff caused him to develop certain psychological coping mechanisms. Plaintiff was unable to ascertain his injuries and their connection to the sexual abuse perpetrated upon him until approximately October 1992.

17. In approximately October 1992, plaintiff ... was hospitalized as being suicidal. At this time, he discovered that his psychological illnesses and emotional difficulties were the result of sexual abuse suffered at the hands of [defendant]. Prior to this time, he had never been diagnosed nor had any indication that the events involving sexual abuse had caused injury and ascertainable damage.

18. Therefore, plaintiff brings this action in a timely fashion pursuant to R.S.Mo. [§§ 537.046] and 516.100, in that he did not discover and could not reasonably ascertain the damages he suffered as a result of the sexual abuse until October of 1992.

The first three counts of plaintiff's and wife's petition were brought by plaintiff against defendant: breach of fiduciary duty (Count I), intentional infliction of emotional distress (Count II), and childhood sexual abuse (Count III). The next five counts were brought by plaintiff against the archbishop ¹ and the church: respondeat superior (Count IV), negligence (Count V), negligent infliction of emotional distress (Count VI), intentional infliction of emotional distress (Count VII), and breach of fiduciary duty (Count VIII). The final two counts were loss of consortium claims against all the respondents, brought by plaintiff (Count IX) and wife (Count X).

On October 12, 1994, the archbishop and the church moved to dismiss the claims against them in Counts IV through X of the petition. On November 3, 1994, defendant moved to dismiss the claims against him in Counts I, II, III, IX, and X. The motions were taken under submission on January 13, 1995.

On February 22, 1995, the trial court granted both motions to dismiss. The court determined plaintiff's damages were sustained and capable of ascertainment at the time of the alleged sexual abuse, and his cause of action therefore accrued at that time. The court noted that "[p]laintiff attempts to avoid the five year statute of limitations [RSMo § 516.120(4) ] ² by arguing that his psychological coping mechanisms repressed any memory of the abuse until 1992." However, the court found, in reliance on Doe v. Roman Catholic Diocese, 862 S.W.2d 338 (Mo.banc 1993) and Vandenheuvel v. Sowell, 886 S.W.2d 100 (Mo.App.W.D.1994), that "repressed memory does not serve to extend the statute of limitations for Plaintiffs' claims to the time plaintiff's memory revived." The court further found RSMo § 537.046 did not extend the time for filing the petition, as the original statutes of limitations--RSMo §§ 516.120 and 516.100--had already expired and the respondents had therefore acquired a vested right to be free from suit.

The trial court dismissed all the counts against defendant: Counts I, II, and III were dismissed "based on the statute of limitations[;]" Count IX (plaintiff's claim of loss of consortium) was dismissed for failure to state a claim; and Count X (wife's claim of loss of consortium) was dismissed because wife was not married to plaintiff at the time his cause of action accrued. The court also dismissed Counts IV through X against the archbishop and the church. This appeal followed.

Several statutes of limitations are involved in this case. An action for sexual abuse may be brought as a battery action, in which case the plaintiff has two years to file the action, RSMo § 516.140; or the action may be brought pursuant to RSMo § 516.120(4), which requires that tort actions not specifically enumerated by statute (but recognized at law) be brought within five years. See Doe v. Roman Catholic Diocese, 862 S.W.2d at 339. If the alleged abuse occurred when the plaintiff was a minor, RSMo § 516.170 tolls the applicable statute of limitations until the plaintiff turns twenty-one. See J.D. v. M.F., 758 S.W.2d 177, 178 (Mo.App.E.D.1988). With respect to RSMo §§ 516.120(4) and 516.140, RSMo § 516.100 provides that

the 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,....

(emphasis added.) Also, RSMo § 537.046.2 provides for independent civil actions for damages suffered as a result of childhood sexual abuse, if the action is brought within five years of the plaintiff's eighteenth birthday, 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 is later. However, RSMo § 537.046 does not revive actions that have expired prior to its effective date of August 28, 1990, and, if a plaintiff's suit was already barred by an existing statute of limitations on that date, the defendant has obtained a vested right to be free from suit. Doe v. Roman Catholic Diocese, 862 S.W.2d at 342.

In this case, the petition alleges defendant's acts occurred in 1963 and 1964, when plaintiff was still a minor. If plaintiff's cause of action did accrue at the time these acts occurred, time would start running upon plaintiff's twenty-first birthday in 1971 and would have expired in 1976. In their petition, plaintiff and wife allege their cause of action did not accrue at the time defendant allegedly sexually abused plaintiff, and claim the damage to plaintiff caused by defendant's alleged conduct was not capable of ascertainment until October of 1992, due to "certain psychological coping mechanisms" of plaintiff. According to plaintiff and wife, as their cause of action did not accrue until 1992, none of their claims were time-barred.

In determining when a statute of limitations begins running, "[d]amage is ascertainable when the fact of damage 'can be discovered or made known,' not when a plaintiff actually discovers injury or wrongful conduct.... When damage is ascertainable is an objective determination." Sheehan v. Sheehan, 901 S.W.2d 57, 58-59 (Mo.banc 1995) (citations omitted). If the statute of limitations is raised as an affirmative defense, the trial court may not dismiss unless it is clearly established, on the petition's face and without exception, that the action is barred. Id. at 59. In reviewing the dismissal of a petition, reviewing courts must allow the pleading its broadest intendment, treating all facts alleged as true and construing the petition's allegations favorably to the plaintiff. Id.

Sheehan was handed down by the Missouri Supreme Court subsequent to the dismissal of plaintiff's and wife's claims. In that case, the trial court dismissed as barred by the statute of limitations a personal injury action by a daughter against her father for childhood sexual abuse. Daughter's petition alleged father committed numerous batteries and assaults when she was a minor, and was therefore subject to the two-year limit set out in RSMo § 516.140. Daughter's petition further alleged she "involuntarily repressed conscious memory" of the alleged abuse by father "throughout her childhood and young adulthood until August 1990 or thereafter." In granting father's motion to dismiss the petition, the trial court found that daughter's cause of action accrued when she was a minor and that she failed to bring her action within the two-year period allowed to her after her twenty-first birthday.

The Missouri Supreme Court reversed, ruling daughter's petition did not "clearly indicate on its face and without exception" that suit was barred before the effective dates of RSMo §§ 537.046.2 and 516.371. ³ Id. The Court stated:

[Daughter] alleges that [father]'s conduct caused "consequential injuries and damages." The petition does not state the date [daughter] "sustained and suffered" these injuries and damages; it is ambiguous as to when she objectively could have discovered or made known the fact of damage. The only date alleged is that she...