Powel v. Chaminade College Preparatory

• Citation: 197 S.W.3d 576
• Decision Date: 13 June 2006
• Docket Number: No. SC 86875.,SC 86875.
• Parties: Michael POWEL, Appellant, v. CHAMINADE COLLEGE PREPARATORY, INC., and the Marianist Province of the United States, Respondents, and Archbishop Justin Rigali, William Christensen, and John J. Woulfe, Defendants.
• Court: United States State Supreme Court of Missouri

197 S.W.3d 576

Michael POWEL, Appellant, v. CHAMINADE COLLEGE PREPARATORY, INC., and the Marianist Province of the United States, Respondents, and Archbishop Justin Rigali, William Christensen, and John J. Woulfe, Defendants.

No. SC 86875.

Supreme Court of Missouri, En Banc.

June 13, 2006.

As Modified on Denial of Rehearing August 22, 2006.

Joseph L. Bauer, Jr., James E. Hopkins, Jr., St. Louis, for appellant.

Gerard T. Noce, Matthew W. Potter, Michael L. Young, St. Louis, for respondents.

Rebecca M. Randles, Kansas City, Kenneth M. Chackes, M. Susan Carlson, Edward M. Goldenhersh, Bernard C. Huger, David P. Niemeier, St. Louis, Jeffrey R. Anderson, Patrick W. Noaker, St. Paul, MN, for amicus curiae.

LAURA DENVIR STITH, Judge.

This Court must determine whether the bar of the statute of limitations required entry of summary judgment in Respondents' favor on Michael Powel's claims against them for intentional failure to supervise clergy. Michael alleges that defendants Father William Christensen and Brother John Woulfe, while teachers living at Chaminade College Preparatory, Inc., sexually abused him while he was a minor attending and living at the school in the 1970s.¹ He alleges he repressed his memory of that abuse until age 41 and only then did the statute of limitations begin to run.

Applying what it believed was the controlling decision, H.R.B. v. Rigali, 18 S.W.3d 440 (Mo.App. E.D.2000), the trial court determined that Michael's damages became "capable of ascertainment" and the statute of limitations began to run when the sexual abuse occurred, that the statute of limitations was not tolled during the time Michael suppressed his memory of the wrong, and that his claim was time-barred before he brought suit in 2002. It entered judgment accordingly.

This Court reverses and remands for further proceedings. A tort claim such as that asserted by Michael does not accrue, and the limitations period does not begin to run, "when the wrong is done or the technical breach of . . . duty occurs, but when the damage resulting therefrom is sustained and is capable of ascertainment." Sec. 516.100, RSMo 2000.² Here, the parties' interpretation of the facts is clearly in conflict. Respondents argue that statements in Michael's deposition demonstrate that he knew of the wrongful conduct and that he had sustained substantial injury prior to his alleged repression of his memory, pointing to various parts of his deposition and other record evidence in support. Michael argues that his affidavit and that of his expert along with other parts of the record support his claim that he repressed his memory of the sexual misconduct before the resulting emotional and psychological damages caused by the wrongful conduct occurred, so that his damages were not capable of ascertainment until he regained those repressed memories in 2000.

While it is clear that the record contains conflicting evidence of what Michael knew at what point, the salient issue for statute of limitations purposes is whether these conflicts in evidence create a question of fact on the key issue whether, prior to his alleged memory repression, a reasonable person in Michael's position would have known or been put on inquiry notice not just of the wrong and nominal immediate injury therefrom, but also that substantial, non-transient damage had resulted and was capable of ascertainment.

It is not appropriate for this Court to make credibility determinations on summary judgment. Further, it is premature to determine whether Michael can meet this standard, for the trial court and parties have not yet had the opportunity to address whether this record presents a material factual question under this standard, nor have the parties had the opportunity to address whether additional discovery is necessary prior to determining this issue. This Court, therefore, reverses the judgment and remands the case.

I. FACTUAL AND PROCEDURAL BACKGROUND

Michael Powel was born June 10, 1958. According to deposition testimony given by Michael in this case and others, he first suffered sexual abuse by a family member when he was only 5 or 6 years old. He suffered further sexual abuse from two other family members on several occasions between ages 6 and 10, and suffered substantial sexual abuse from the age of 9 or 10 until age 13, from two non-family members, one of whom committed serious acts of sexual abuse on dozens of occasions during that period.

Beginning in the fall of 1973, Michael, then aged 15, began attending Chaminade College Preparatory College, Inc. d/b/a Chaminade College Preparatory School, where Brother Woulfe and Father Christensen were members of the Marianist Province of the United States (Chaminade and the Marianist Province are hereinafter collectively referred to as "Chaminade"). Michael was a boarding student at the school, which is located in the city of St. Louis, between the ages of 15 and 17. He lived in Canning Hall. Brother Woulfe and Father Christensen also lived in Canning Hall. Michael remained a boarding student until the spring of 1975, when Chaminade expelled him for selling alcohol to other students at the school.

Once expelled, Michael, then age 17, moved to the home of his friend and fellow student, Marc, in Springfield, Illinois. According to deposition testimony, while there he was abused by Marc's mother. When that abuse was discovered, Michael had to leave. After leaving Marc's home, Michael felt he was good for nothing except sexual abuse. He started to hitchhike, and sometimes men would pay him for sexual favors. This conduct occurred over the next four years. He continued to display a multitude of emotional and physical problems over the next decades.

In February 2000, Michael was diagnosed with a brain tumor. In the course of treatment for that condition, he regained previously repressed memories of five occasions of sexual abuse at the hands of Father Christensen and three occasions of sexual abuse at the hands of Brother Woulfe from 1973 to 1975, while a boarding student at Chaminade, including, inter alia, fondling, oral sex, and sodomy. Father Christensen also introduced Michael and his friend Marc to pornography at a St. Louis theater.

Michael alleges that, although he repressed his knowledge of the abuse, it caused post-traumatic stress disorder that subconsciously affected his conduct. This, he says, is what caused him to act out inappropriately, resulting in his dismissal from Chaminade and later his inappropriate sexual conduct, although he was not aware that this was the reason for his improper conduct until he regained his repressed memories in 2000 and began receiving therapy and treatment by a licensed clinical psychologist, Dr. Michael S. Greenburg, in 2001. On June 2, 2002, Michael filed suit against Chaminade for intentional failure to supervise clergy and individually against Father Christensen and Brother Woulfe for his damages resulting from the sexual abuse.

Chaminade filed a motion for summary judgment, claiming Michael's suit was barred by the statute of limitations. It pointed out that the report of Michael's expert psychologist, Dr. Greenberg, stated that Michael remembered being molested until approximately age 17 but then repressed his memories, and that at his deposition Michael said he always knew he had been abused, although he did not specify which abuse he had always known occurred.

Michael countered that his claim was not time-barred because he filed suit within the statutory period after ascertaining that he had been abused by Father Christensen and Brother Woulfe as a minor and that this abuse had caused or contributed to his psychological problems. Dr. Greenberg filed an affidavit clarifying that Michael had never told him that he knew of the sexual abuse prior to age 17. Rather, when asked repeatedly by Dr. Greenberg whether his memories of childhood abuse might have been "suggested" to him by a counselor he saw after he had his brain tumor at age 41, Michael had insisted he had recalled the childhood abuse before seeing the counselor, not as a result of her questioning. No testimony by Michael, and nothing in Dr. Greenberg's report, specifically states that Michael recalled abuse by Father Christensen or Brother Woulfe before age 17 or that he always knew of it (as opposed to one or more of the other sexual abuse incidents he testified had occurred). Michael elsewhere made it clear he had repressed knowledge of the abuse by Father Christensen and Brother Woulfe from the age of 17 until the time of the brain tumor. He filed an affidavit clarifying that he did not recall their sexual abuse until he regained his repressed memories.

The record presented factual issues (some of which are relevant and some not) as to what Michael knew and what he remembered at different points in his life about abuse by Father Christensen, Brother Woulfe, and others. The trial court concluded that, were it free to do so, it would find that a genuine issue of material fact existed as to whether Michael's damages were capable of ascertainment before he recovered his memories as an adult. But, the trial court said, it was bound by H.R.B. to hold that damages resulting from sexual abuse are sustained and capable of ascertainment at the time of the abuse. It granted defendants' motion for summary judgment.

Michael appealed to the Court of Appeals, Eastern District, which transferred the case to this Court after opinion for resolution of the apparent conflict as to the meaning of the phrase "sustained and capable of ascertainment" as interpreted in H.R.B. as compared to various cases of this Court that would require a holding that the cause of action was not time-barred. Mo. Const. art. V, sec. 10.

II. STANDARD OF REVIEW

Summary judgment shall be entered if "there is no genuine issue as to any material fact and . . . the moving party is entitled to judgment as a matter of law." Rule 74.04(c)(6). The moving part...