One Star v. Sisters of St. Francis

• Decision Date: 25 June 2008
• Docket Number: No. 24313.,24313.
• Citation: 752 N.W.2d 668,2008 SD 55
• Parties: Lloyd ONE STAR et al., Plaintiffs and Appellees, v. SISTERS OF ST. FRANCIS, DENVER, COLORADO, Defendant and Appellant, and St. Francis Mission, Wisconsin Province of the Society of Jesus, and Diocese of Rapid City, Defendants.
• Court: South Dakota Supreme Court

752 N.W.2d 668

2008 SD 55

Lloyd ONE STAR et al., Plaintiffs and Appellees, v. SISTERS OF ST. FRANCIS, DENVER, COLORADO, Defendant and Appellant, and St. Francis Mission, Wisconsin Province of the Society of Jesus, and Diocese of Rapid City, Defendants.

No. 24313.

Supreme Court of South Dakota.

Argued October 1, 2007.

Decided June 25, 2008.

Reassigned April 3, 2008.

Gregory A. Yates of Law Offices of Gregory A. Yates, PC Rapid City, South Dakota, Gregory A. Yates of Law Offices of Gregory A. Yates, PC, Encino, California, Attorneys for plaintiffs and appellees.

Sheila S. Woodward and Michael F. Marlow of Johnson, Miner, Marlow, Woodward & Huff, Prof. LLC, Yankton, South Dakota Attorneys for defendant and appellant.

ZINTER, Justice (on reassignment).

[¶ 1.] Lloyd One Star and Marian Sorace brought this suit against a boarding school and various religious entities for physical and sexual abuse allegedly perpetrated by members of the entities who worked at the school. The suit was predicated on theories of breach of fiduciary duty, negligence, and vicarious liability. One entity, Sisters of St. Francis, Denver, Colorado (Sisters), moved for summary judgment on the statute of limitations. The circuit court denied the motion and we granted Sisters' petition for an intermediate appeal. We reverse.

I

[¶ 2.] One Star attended the St. Francis Mission School on the Rosebud Indian Reservation from 1963 until 1970. Sorace, One Star's older sister, attended the school from 1960 until 1971. One Star and Sorace allege that during the course of their attendance they were subjected to sexual, physical, and emotional abuse by priests, brothers, and sisters who operated or worked at the school. For a number of years, One Star and Sorace remained silent about the abuse, claiming that at the time, they were threatened that if they disclosed it to anyone, they or their families would be humiliated, denied food, or otherwise harmed.

[¶ 3.] In 2001, One Star responded to an advertisement in a newspaper seeking information on abuse suffered by former boarding students at the school. One Star's letter acknowledged the abuse and its effect upon him. In pertinent part, he wrote:

I am a 44 year old man, and the boarding school experiences have been locked up inside me all these years. I know that what was done to me there affected me in a bad way during my whole life, especially in my relationship with my family members, then with my own sons, my wife, my general outlook in life, my relationship with Tunkasila, my self esteem, and the self-medicating during the years when only excessive use of alcohol eased the pain and inner turmoil.

The letter explained in detail the alleged acts of physical and sexual abuse perpetrated upon him and other students. He also identified the alleged perpetrators of the abuse. The letter concluded acknowledging the effects of the abuse:

I am a Lakota man. Three years ago, the Rosebud Sioux Tribe had the bringing out ceremony, in which the chief's bonnet, which I inherited from my ancestors, was placed on my head. This is a big responsibility, and I can see how the long term effects of the sexual and physical abuse I endured in the early years of my life, and which I have described to you in this account, still have their affects on me personally, and on my interaction with the people. I'm glad about what you're doing, and I want to support you. You have my story now.

[¶ 4.] Sorace also realized the effects of the alleged abuse several years before filing suit. Sorace suffered from anger management issues throughout her life. In 1995, her boyfriend, Archie Beauvais, suggested that she see a counselor about her problems. She subsequently began counseling with Ron Oney. During counseling, Oney asked Sorace if she had been sexually abused, and Sorace informed him that she did not recall at that time. Shortly thereafter Sorace stopped the counseling sessions. Later that year, however, Sorace conversed with a girl who had been sexually abused. During this conversation, Sorace's memory of her abuse was revived. Sorace described the revival in her deposition:

And as I was sitting there, I started to talk about me. And I said, you know what? I said, when I was little, I said, Brother Chapman — there was a brother at St. Francis Indian School — and I was telling her, it was coming out of me.... I said, this is the first time I'm remembering something. And she goes, you were sexually abused? I said, yeah.

[¶ 5.] After informing Beauvais that she then recalled the abuse, Beauvais advised Sorace to call Ron Oney again and resume counseling for her anger problems. Sorace called Oney. She testified in her deposition that her subsequent conversations with Beauvais and Oney involved the following discussions of the abuse, its relationship to her problems, and her follow-up to treat those problems:

Q: [Y]our answers to interrogatories that you gave us before said that in 1995 you told Ron [Oney] that you had been sexually abused.

A: Okay. So then after I went to Ron [Oney] I did not go back to him and when — when [Beauvais] told me to go to counseling, that was about that time.... And so when I left I went to [Beauvais's] house and I told him, I said, guess what I remembered today? And he said, what, and he said — so I said — I didn't want to tell him. I didn't want to tell [Beauvais] because I lied to him and said — because he asked me one time about my anger and he said were you ever sexually abused when you were little, and I said no because I just — you know, I wanted to be with [Beauvais] and at that time I didn't remember anyway, but when I told him he said, remember when I was asking you and you told me no?

I said, yes, because I didn't remember then but I do now. That's why I'm here telling you. And he said, well, the next thing you need to do is call Ron Oney[, the counselor,] in Rapid City and tell him.

So I told Ron [Oney] and he said good. He said that's what — that's what — that's what I was trying to get out of you, and I never went back to him.

. . . .

Q: So in [19]95, when you remembered, when you were talking to this young lady ... and you called Ron Oney and he said that's what I was trying to get at, that's what I was trying to figure out your anger and those things, is that what he told you?

A: Uh-huh, and then I never went back to him, and so three — three months later he calls [Beauvais] and asks — has asked [Beauvais] how I was doing. And [Beauvais] said, well, you know, she's still an angry woman. She's still an angry lady, and Ron [Oney] was trying to have him talk to me to go back to him, but I couldn't — I couldn't pay for the ninety bucks a session, you know.

(Emphasis added.)

[¶ 6.] Although neither One Star nor Sorace commenced this suit within three years of these events, on April 10, 2003, a class action entitled Sherwyn Zephier, et al. v. United States of America, United States Court of Federal Claims, Case No. 03-768, was filed on behalf of Native American children who were allegedly abused at Roman Catholic boarding schools. One Star was a named plaintiff in the action; Sorace was not. On November 1, 2004, the class action was dismissed for failure to exhaust administrative remedies.

[¶ 7.] In June 2004, prior to dismissal of Zephier, One Star and Sorace filed this suit against the following entities: St. Francis Mission; Wisconsin Province for the Society of Jesus; Diocese of Rapid City; and Sisters. Although the complaint was filed in 2004, Sisters was not served with the summons until July 11, 2005.

[¶ 8.] Following discovery, Sisters moved for summary judgment arguing that One Star and Sorace failed to file suit within the statute of limitations provided in SDCL 26-10-25. The circuit court denied the motion without opinion. This Court granted Sisters' petition for an intermediate appeal to consider the following issues:

Whether One Star and Soraces' action was timely commenced under SDCL 26-10-25.

Whether the statute of limitations was tolled by the class action filed against the United States.

Whether the statute of limitations was tolled by fraudulent concealment.

Whether the statute of limitations was tolled under the doctrine of estoppel by duress.

[¶ 9.] "Under our familiar standard of review in summary judgment cases, we decide only whether genuine issues of material fact exist and whether the law was correctly applied." Bordeaux v. Shannon County Sch., 2005 SD 117, ¶ 11, 707 N.W.2d 123, 126. This Court views the evidence most favorably to the nonmoving party and the burden of proof is on the moving party to show that there are no genuine issues of material fact. Wulf v. Senst, 2003 SD 105, ¶ 17, 669 N.W.2d 135, 141. Although we often distinguish between the moving and nonmoving party in referring to the parties' summary judgment burdens, the more precise inquiry looks to who will carry the burden of proof on the claim or defense at trial. Entry of summary judgment is mandated against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial. See Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S.Ct. 2548, 2552, 91 L.Ed.2d 265, 273 (1986).¹

II

[¶ 10.] SDCL 26-10-25 establishes the time in which a civil action arising out of childhood sexual abuse must be brought.

Any civil action based on intentional conduct brought by any person for recovery of damages for injury suffered as a result of childhood sexual abuse shall be commenced within three years of the act alleged to have caused the injury or condition, or three years of the time the victim discovered or reasonably should have discovered that the injury or condition was caused by the act, whichever period expires later.

[¶ 11.] In this case there is no dispute that although the acts of abuse occurred decades ago, One Star and Sorace became aware of the abuse more...