LaCava v. LaCava
| Decision Date | 02 June 2009 |
| Docket Number | No. 49A04-0808-CV-451.,49A04-0808-CV-451. |
| Citation | 907 N.E.2d 154 |
| Parties | Frederick William LaCAVA, Appellant-Defendant, v. Daniel LaCAVA and Geoffrey LaCava, Appellees-Plaintiffs. |
| Court | Indiana Appellate Court |
Sherwood P. Hill, Clinton E. Blanck, Maurer Rifkin & Hill, P.C., Carmel, IN, Attorneys for Appellant.
R. Daniel Craven, Craven, Hoover & Blazek, P.C., Indianapolis, IN, Attorney for Appellees.
Frederick William LaCava was sued by his adopted adult sons, Daniel and Geoffrey, for damages arising out of Frederick's alleged molestation of them when they were children. Frederick filed a motion for summary judgment alleging that the complaint was filed after the running of the statute of limitations. Frederick appeals the trial court's denial of his motion, raising four issues that we consolidate and restate as two: 1) whether Daniel and Geoffrey's claims are barred by the statute of limitations, and 2) whether, in the absence of expert opinion evidence regarding Daniel and Geoffrey's claims of repressed memory, their complaint can withstand summary judgment. Daniel and Geoffrey cross-appeal the trial court's denial of their third motion for extension of time to respond to Frederick's motion for summary judgment, alleging the trial court abused its discretion in denying them an extension for the purpose of gathering expert opinion evidence.
Concluding that issues of fact preclude summary judgment in Frederick's favor on the statute of limitations and that Daniel and Geoffrey did not need to designate expert opinion evidence to refute Frederick's motion for summary judgment because of the position Frederick took with respect to their request for additional time to procure such evidence, we affirm.
The facts stated most favorably to Daniel and Geoffrey as the non-movants are as follows: Frederick and Elizabeth LaCava were married in 1966 and subsequently adopted five children—Andrew, Courtney, Sarah, Daniel, and Geoffrey.2 Daniel was born on September 12, 1979, and Geoffrey was born on January 23, 1981. Frederick molested Daniel several times a week from the time he was "as young as [he] can remember," appellant's appendix at 98, until he was approximately twelve years old, id. at 103. In 1989, Daniel told Elizabeth that Frederick was molesting him and Geoffrey. Elizabeth asked Frederick to move out of the family home and they later divorced. Daniel visited Frederick at his new house and Frederick molested him there as well, but the molestations ceased when Daniel was twelve or thirteen. Id. at 105. Daniel claims that after the molestation stopped, he lost all memory of the events until early 2005. Id. at 115.
Frederick also molested Geoffrey from "as far back as [he] can remember," id. at 139, until he was approximately eleven years old, id. at 142. When Elizabeth learned that Daniel was being molested, she questioned Geoffrey and he confirmed that Frederick was molesting him as well. After he moved out of the family home at Elizabeth's request, Frederick did not molest Geoffrey further. Id. Geoffrey claims that after the molestation stopped, he lost all memory of the events until early 2005. Id. at 147.
Elizabeth did not report the molestation to the authorities when she learned about it. She did consult a lawyer who told her to "forget it." Id. at 184. Elizabeth and Andrew claim they had discussions with Daniel and Geoffrey after 1989 and prior to 2005 in which they acknowledged being molested. As stated above, Daniel and Geoffrey both claim they had no memory of the molestations until 2005. In 2005, Geoffrey was at Frederick's house when he found child pornography stored on Frederick's computer "and it just messed with my head and memories started coming back then." Id. at 148. Because Daniel was in his memories, Geoffrey spoke to Daniel about his memories of those childhood events. Geoffrey and Daniel went to their childhood home and "as soon as we stepped on the property the memories just came—everything flooding back, everything." Id. at 149. They then went to the police station and reported the molestations. Frederick was prosecuted and incarcerated for his crimes.
On June 21, 2005, Daniel and Geoffrey filed a civil lawsuit against Frederick seeking compensatory and punitive damages for Frederick's conduct. They amended their complaint on October 12, 2005, to further allege that "the emotional trauma occasioned by [Frederick's] conduct caused [their] memory or recollection of the conduct to be suppressed until February 2005." Id. at 34. Frederick's answer, filed November 21, 2005, named Elizabeth as a nonparty whose fault contributed to Daniel and Geoffrey's injuries. Frederick's answer also raised the statute of limitations as an affirmative defense.
On February 5, 2008, Frederick filed a motion for summary judgment alleging that the statute of limitations had run and the complaint was untimely. In support of his motion, Frederick designated the affidavits of Elizabeth and Andrew. Elizabeth avers that Daniel told her he was being molested in the fall of 1989. Elizabeth then questioned Geoffrey, who agreed with everything Daniel had said and confirmed that he, too, was being molested. In 1999, in 2000, and "[f]rom time to time, at different times after 2001," id. at 45, Daniel talked to Elizabeth about the molestation. In 2003 or 2004, Geoffrey told Elizabeth about the molestation while they were on a trip together. In May of 2005, Daniel and Geoffrey told Elizabeth they were going to file a lawsuit against Frederick "to get money from him and claim, as part of the scam, that they only recently recovered repressed memories of past sexual abuse and molestation...." Id. Based upon Elizabeth's numerous conversations with Daniel and Geoffrey from 1999 to 2004 regarding their molestation by Frederick, it is Elizabeth's "lay opinion that Daniel and Geoffrey both had clear and present memories of those alleged events during those times." Id. Andrew avers that in October 1999, Geoffrey confronted Frederick in Andrew's driveway and accused Frederick "of being a `child molester' and molesting him and [Daniel]." Id. at 49.
Daniel and Geoffrey requested and received two thirty-day extensions of time to respond to Frederick's motion for summary judgment in order to take the depositions of Elizabeth and Andrew. On April 18, 2008, Daniel and Geoffrey requested a third extension of time in order to have Geoffrey3 evaluated by a psychiatrist and get an expert opinion on the repressed memory claim. Frederick opposed the extension because
[w]hether a psychiatrist (who has never treated [Daniel and Geoffrey]) can render an opinion that will assist the trier of fact in determining when and if [Daniel and Geoffrey's] memories were repressed is irrelevant for purposes of summary judgment if [Daniel and Geoffrey] cannot refute the testimony of [Elizabeth], who affirmed that the boys told her of [Frederick's] alleged misconduct as early as 1989 and on numerous other occasions during their minority, after they reached majority, and before their respective statutes of limitation ran.
... [Daniel and Geoffrey] claim that they are able to refute the factual assertions made by the affiants in the time currently allotted by the Court. If they can demonstrate a genuine issue of material fact, then they should do so without further delay.
Appellee's Appendix at 6-7. The trial court denied the extension. On May 7, 2008, Daniel and Geoffrey filed a timely response to the motion for summary judgment. In support of their objection to the entry of summary judgment, they designated depositions of Daniel, Geoffrey,4 Elizabeth, and Andrew, and an affidavit by Geoffrey. Geoffrey avers in his affidavit that from shortly after the molestations ceased until January 2005, he had no conscious memory of the molestations and that he "reasonably believe[s] the trauma of the molestations caused [his] recollection of the conduct to be repressed." Id. at 220. He denies going on a trip with Elizabeth in 2003 or 2004. He states that he did go on a trip with her in 2002, but he did not talk to Elizabeth about the molestations during that trip or at any other time since his childhood. He denies telling Elizabeth he intended to perpetrate a scam by claiming repressed memory. He also denies having a verbal altercation with Frederick in Andrew's driveway in October of 1999. He further avers that in 1991 or 1992 when two foster children who had been placed in the home reported that Frederick was molesting them, Elizabeth instructed him prior to an interview by Child Protective Services not to disclose that Frederick had also molested him.
The trial court denied the motion on May 22, 2008. The trial court's order reads, in its entirety, as follows:
This action for damages is the result of repeated childhood sexual molestation by [Frederick] upon his children, [Daniel and Geoffrey]. [Daniel and Geoffrey's] cause of action was filed more than two years after each of [them] reached the age of majority. [Frederick's] Motion for Summary Judgment presents two arguments. [Frederick] contends that [Daniel and Geoffrey] did not suffer from repressed memory of the molestations and, therefore, they cannot bring this action beyond two years after they each reached the age of majority. [Frederick] also argues, assuming [Daniel and Geoffrey] did suffer from repressed memory, the fraudulent concealment exception to the running of the statute of limitations does not apply. The "non-offending" parent (Elizabeth Lacava) became aware of the molestations and her knowledge is imputed to the child victims. Therefore, [Frederick] argues that Elizabeth's knowledge conclusively constitutes the accrual of an action within the meaning of the disability statute and the action must fail, IC 34-1-2-5.
The Court denies [Frederick's] Motion for Summary Judgment for two reasons. First, the affidavits of Elizabeth Lacava...
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