Straub v. Tull

• Decision Date: 06 February 2004
• Docket Number: No. 25485.,25485.
• Citation: 128 S.W.3d 157
• Parties: Terri STRAUB, Respondent, v. Gary TULL, Appellant.
• Court: Missouri Court of Appeals

128 S.W.3d 157

Terri STRAUB, Respondent, v. Gary TULL, Appellant.

No. 25485.

Missouri Court of Appeals, Southern District, Division One.

February 6, 2004.

Motion for Rehearing or Transfer Denied February 25, 2004.

Application for Transfer Denied March 30, 2004.

Bert V. Twibell, Deanna K. Scott & Thomas D. Carver, Springfield, for Appellant.

W. Craig Hosmer & Stuart H. King, Springfield, for Respondent.

ROBERT S. BARNEY, Presiding Judge.

Gary Tull, ("Appellant"), appeals from a judgment entered against him in which his daughter, Terri Straub ("Respondent"), was awarded damages arising from his acts of childhood sexual abuse against her. In the trial below, a jury awarded Respondent $25,000.00 in actual damages and $85,000.00 in punitive damages. We affirm.

In his sole point relied on, Appellant maintains the trial court erred in overruling his motions for directed verdict at the close of Respondent's evidence and at the close of all of the evidence. Appellant also contends the trial court erred in overruling Appellant's amended motion for judgment notwithstanding the verdict, or, in the alternative, Appellant's motion for new trial based on the running of relevant statutes of limitations, as explained below.

"In reviewing motions for directed verdict and for judgment notwithstanding the verdict, this Court takes the evidence in the light most favorable to the verdict, giving the prevailing party all reasonable inferences from the verdict and disregarding the unfavorable evidence." Nemani v. St. Louis University, 33 S.W.3d 184, 185 (Mo. banc 2000). "The trial court has wide discretion in ruling upon a motion for new trial." Enos v. Ryder Automotive Operations, Inc., 73 S.W.3d 784, 788 (Mo.App. 2002). "In reviewing a trial court's denial of a motion for new trial, we must indulge every reasonable inference favoring the trial court's ruling and not reverse that ruling absent a clear abuse of discretion." Ballard v. Ballard, 77 S.W.3d 112, 115 (Mo.App.2002) (quoting Ashcroft v. TAD Res. Int'l, 972 S.W.2d 502, 505 (Mo.App. 1998)).

We observe that a statute of limitations allows a cause of action to accrue and then cuts off the claim if suit is not filed within a certain period of time. Lomax v. Sewell, 1 S.W.3d 548, 552 (Mo.App. 1999). "The running of the applicable statute of limitations is an affirmative defense and must be pleaded as such pursuant to Rule 55.08." Id. "The party asserting the affirmative defense of the running of the applicable statute of limitations has the burden of not only pleading but proving it." Id. "Although a party need not necessarily plead matters in avoidance of limitations in the first place, they must appear by way of reply to the pleading raising the defense, if not appearing on the face of the original petition." Yahne v. Pettis County Sheriff Dept., 73 S.W.3d 717, 719 (Mo.App.2002) (citations omitted).

Normally, the running of the statute is a question of law for the trial court to decide. Lomax, 1 S.W.3d at 552. Such questions of law are granted de novo appellate review with no deference being paid to the trial court's determination of law. State v. Williams, 24 S.W.3d 101, 110 (Mo.App.2000); State v. Tinoco, 967 S.W.2d 87, 89 (Mo.App.1998).

"However, when contradictory or different conclusions may be drawn from the evidence as to whether the statute of limitations has run, it is a question of fact for the jury to decide." Lomax, 1 S.W.3d at 552-53.

"Where the opposing party admits the running of the statute of limitations, there is no question of fact on this issue for the jury to decide requiring an instruction thereon." Id. "However, when the running of the applicable statute of limitations is not admitted and turns on a jury question, a jury instruction is required and the failure of the party relying on the defense to request an instruction on the same constitutes an abandonment thereof, even though it was properly pled." Id.

Viewing the facts in the light most favorable to the jury's verdict, Seitz v. Lemay Bank and Trust Co., 959 S.W.2d 458, 461 (Mo. banc 1998), we observe that Respondent was born on February 22, 1967, to Appellant and Alice Tull (now Mondt).

On May 25, 2000, at the age of 33, Respondent filed suit against her father, Appellant herein, alleging that she had been the victim of continuing childhood sexual abuse by Appellant from approximately age seven until age seventeen, i.e., 1974 to 1984. Respondent asserted that as a consequence of being subjected to deviate sexual intercourse and sexual contact, as defined under section 566.010, RSMo 2000 as well as other inappropriate sexual conduct and contact, she suffered emotional and psychological injuries that were directly attributable to Appellant.

In her petition, Respondent specifically sought relief for battery, intentional infliction of emotional distress, negligent infliction of emotional distress, loss of consortium by her husband, Martin Straub, and "childhood sexual abuse" as set out in section 537.046, RSMo Cum.Supp.1990.¹

In his pleadings, and at trial, Appellant raised the affirmative defense of lapse of relevant statutes of limitations. In particular, as to Count IV, Appellant asserted that Respondent had not complied with the time limitations as set out in section 537.046, RSMo Cum.Supp.1990, because she neither filed her cause of action within five years of the date she attained the age of eighteen or within three years of the date she discovered or reasonably should have discovered that the injury or illness she suffered was caused by acts of child sexual abuse against her.

Prior to trial, Appellant filed a motion to dismiss Respondent's petition. The trial court granted the motion to dismiss "as to all counts except Count IV," involving "childhood sexual abuse," as set out in section 537.046, RSMo Cum.Supp.1990, on which the case proceeded to trial.

At trial, Respondent testified that while she had always independently remembered specific acts of sexual abuse by Appellant, she acknowledged that it was not until the "end of 1998" when she realized she might be suffering from "[psychological] injuries" and damage resulting from her prior sexual abuse. See § 537.046.1(2), RSMo Cum. Supp.1990.

Respondent variously testified that between the ages of seven and twelve, Appellant touched her vaginal area on "maybe 20" occasions and she further related other specific acts of sexual abuse.

On cross-examination, when asked if she had any recollection since age nine of Appellant "getting naked and laying on top of [her]," Respondent answered, "I don't know exactly what age I was." She also related that when she was older she "learned how to not walk up steps in front of him because if he was behind me on the staircase and I had my cheerleading uniform on he would grab my rear end...."²

In 1996, Respondent and her husband, Martin ("Marty"), began marriage counseling to develop "communication skills," but there was no discussion of her sexual abuse by her father at that time. In October 1997, Respondent sought treatment for depression from Dr. Russell Detten. Respondent maintains she made no connection between her depression and her childhood sexual abuse while being treated by Dr. Detten. Thereafter, Respondent was diagnosed with breast cancer in March 1998. Around the same time, she developed trouble eating, had anxiety attacks, was having marital and intimacy problems with Marty, and would often wake up feeling "like something was laying right on top of [her]."

Lastly, Respondent specifically related that it was "[n]ot until '98 when everything compounded did I realize there was a problem." In October of that year, she first informed her husband about her childhood sexual abuse.

Thereafter, in March 1999, she sought counseling from Ellen Richardson, a clinical psychologist. In February of 2000, Dr. Richardson diagnosed Respondent as suffering from "Post-traumatic Stress Disorder." Testifying at trial, Dr. Richardson stated the disorder was a "recognized result of childhood sexual abuse." She also opined it was her belief that Respondent's cancer diagnosis, along with Respondent's daughter being the same age Respondent was when her sexual abuse commenced, triggered the symptoms of "Post-traumatic Stress Disorder."

At the close of all the evidence, Appellant moved for a directed verdict.³ Asked by the trial court if he wanted oral argument in support of his motion, Appellant's counsel answered, "only in regards, Your Honor, to the affirmative defense and statute of limitations." The trial court then asked, "[T]ell me which evidence you believe establishes that as a matter of law." Following argument from both sides relating to Appellant's affirmative defense, the trial court observed,

Frankly, I think the biggest reason we seem to be like ships passing in the night on this is because [section 537.046, RSMo Cum.Supp.1990] doesn't talk about the damage of the abuse itself. It talks about and defines injury as something separate from that. And so ... if I was going to say as a matter of law as a reasonable person did she know about her sexual abuse, no problem. But this is talking about a separate injury that's defined by statute that's different from the abuse itself. And I think there's nothing that I can show as a matter of law that she should have reasonably associated that back with the events that happened. And so I think your affirmative defense has failed as a matter of law.

Immediately thereafter, the trial court took up matters relating to jury instructions. While Appellant's counsel objected to Respondent's verdict director as "not includ[ing] the proper elements of the statutes regarding this particular offense," and declared "that's my objection," Appellant did not submit an affirmative defense instruction for the jury's consideration regarding the running of the statute of limitations.

The trial court then declared, "It's up to the jury to decide," and denied App...