T.D. v. Wiseman

• Citation: 415 P.3d 852
• Decision Date: 10 August 2017
• Docket Number: Court of Appeals No. 16CA1274
• Parties: T.D., Plaintiff-Appellant, v. Gilbert WISEMAN, Defendant-Appellee.
• Court: Colorado Court of Appeals

415 P.3d 852

T.D., Plaintiff-Appellant,

v.Gilbert WISEMAN, Defendant-Appellee.

Court of Appeals No. 16CA1274

Colorado Court of Appeals, Div. II.

Announced August 10, 2017

Stone Rosen Fuller P.C., Graham Fuller, Boulder, Colorado; Erin B. Eastvedt, Longmont, Colorado, for Plaintiff-Appellant

Paul H. Stevens, Thornton, Colorado, for Defendant-Appellee

Opinion by JUDGE BERNARD

¶ 1 This case requires us to decide whether the record contains any disputed facts that plaintiff, T.D., was under a "legal disability" for purposes of tolling the applicable statute of limitations. Neither the General Assembly nor Colorado appellate courts have defined this phrase.

¶ 2 We hold that "legal disability" for purposes of section 13-80-103.7(3.5)(a), C.R.S. 2016, means an inability to bring a lawsuit based on some policy of the law. Because we conclude that the record does not contain any disputed facts about the question whether T.D. was under a "legal disability" and because we disagree with T.D.'s other contentions, we affirm the trial court's decision to grant the summary judgment motion that defendant, Gilbert Wiseman, had filed.

I. Background

¶ 3 T.D.'s complaint alleged that she had endured ten years of sexual and physical abuse at the hands of defendant, her former stepfather. The complaint added that defendant had raped her, that he had forced her to perform oral sex on him, and that he would "physically beat [her] up ... and smother her with pillows." She alleged that she was seven years old when the abuse began and that it continued until about 1990, when she was in high school.

¶ 4 T.D. alleged that the abuse caused her to become "dependent on drugs and alcohol." She also suffered from post-traumatic stress disorder, psychological disorders, self-mutilation, eating disorders, depression, and a "cycle of abusive relationships."

¶ 5 In August 2005, T.D. disclosed defendant's alleged abuse to the doctors who had been treating her for her various physical and psychological issues. Copies of the doctors' notes in the record state that she had told them that defendant "molested [her] as [a] child between 7-13 [years old]" and that she had reported that defendant "sexually molested her from age 7 through 13." She also told the doctors that her mother had believed her outcry about the abuse, but that her mother could not stand up to defendant. (We could not find an explanation in the record of the inconsistency between T.D.'s statement to the doctors that defendant had abused her for about six years and her statement in the first amended complaint that he had abused her for about ten years.)

¶ 6 T.D. tried to kill herself in 2012. She sobered up after this unsuccessful attempt. Once she had become sober, she alleged that she had "realized that she had been injured by defendant's actions and attributed those injuries to the assaults perpetrated upon her."

¶ 7 Defendant and T.D.'s mother divorced in 2015. That same year, T.D. learned that she had "significant abnormalities of the low back, abdominal wall, [and] pelvic floor." Her doctors thought that these injuries were "associated" with "early victimization/traumatization."

¶ 8 T.D. filed a lawsuit against defendant in the fall of 2015. She asserted assault, battery, sexual assault and battery, extreme and outrageous conduct, and false imprisonment claims.

¶ 9 Defendant filed a motion for summary judgment. He asserted that T.D.'s claims had accrued when she disclosed the alleged abuse to her doctors in 2005. As a result, defendant asserted, T.D.'s claims were time barred by the six-year statute of limitations found in section 13-80-103.7(1) because she should have filed her lawsuit no later than 2011.

¶ 10 T.D. countered that the record before the trial court contained genuine issues of fact concerning whether she had been a "person under disability" until 2012 because of her addictions and psychiatric disorder. If she had been such a person, then the statute of limitations would have been tolled until her disability had lifted. She added that there were also disputed facts about when her claims had accrued.

¶ 11 The trial court granted defendant's motion for summary judgment. It decided that there were no genuine issues of material fact in the record about when T.D.'s claims accrued or about whether the statute of limitations barred those claims.

II. Summary Judgment Principles

¶ 12 Summary judgment is a "drastic remedy," Brodeur v. Am. Home Assurance Co. , 169 P.3d 139, 146 (Colo. 2007), that is appropriate only if "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits ... show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law," C.R.C.P. 56(c). The nonmoving party is entitled to the benefit of all favorable inferences that a court can reasonably draw from the undisputed facts. Brodeur , 169 P.3d at 146.

And the court must resolve all doubts against the moving party. Id.

¶ 13 We review a trial court's decision to grant a motion for summary judgment de novo. Select Energy Servs., LLC v. K-LOW, LLC , 2017 CO 43, ¶ 12, 394 P.3d 695.

III. Claim Accrual

¶ 14 The trial court decided that T.D.'s claim accrued in 2005. To the extent that T.D. asserted in a footnote in the opening brief that the record contained disputed facts about when her claims accrued, we decline to address this claim. She only made a cursory reference to this assertion, and she did not provide any analysis or authority. See Prospect 34, LLC v. Gunnison Cty. Bd. of Cty. Comm'rs , 2015 COA 160, ¶ 28, 363 P.3d 819 (noting that if an appellant makes a conclusory argument, without citation to any authority supporting the position, we may decline to address it); see also People v. Aguilar , 2012 COA 181, ¶ 36, 317 P.3d 1255 (noting that appellant had abandoned a claim raised below but not reasserted on appeal).

¶ 15 Because the issue of when the claim accrued is not properly before us, we do not have to decide when it accrued. We will instead assume that it accrued, at the latest, in 2005.

IV. Tolling the Statute of Limitations

¶ 16 We next address this question: Does the record contain a factual dispute about whether the applicable statute of limitations was tolled because, under the statute, T.D. was a "person under disability"? We answer this question "no."

A. Tolling Provisions

¶ 17 Civil suits based on allegations that a defendant sexually abused a child must be brought within six years after either (1) the cause of action accrues; or (2) "a disability has been removed for a person under disability," whichever occurs later. § 13-80-103.7(1).

¶ 18 A plaintiff is a "person under disability" for the purposes of tolling the statute of limitations if she is (1) "a minor under eighteen years of age"; (2) "declared mentally incompetent"; (3) "under other legal disability and who does not have a legal guardian"; or (4) "in a special relationship with the perpetrator of the assault" and "psychologically or emotionally unable to acknowledge the assault or offense and the resulting harm." § 13-80-103.7(3.5)(a).

1. "A Minor under Eighteen Years of Age"

¶ 19 T.D. has not been a minor since the very early 1990s. Her first amended complaint alleged that defendant began abusing her in 1980, when she was "approximately" seven years old, and that he continued to sexually assault her until 1990, when she was "approximately" seventeen years old. The record indicates that she was forty-three years old when the trial court granted defendant's summary judgment motion in 2016. We therefore conclude that the record establishes that she was not a minor from 2005 to 2011, when the statute of limitations was running.

¶ 20 So our next task is to decide whether the record contained disputed facts that T.D. was "mentally incompetent," "a person under other legal disability," or in a "special relationship" with defendant and "psychologically or emotionally unable to acknowledge" the offense and harm. See id. We apply the statutory definitions of these terms in effect when T.D.'s claims accrued in 2005. See In re Estate of Kiser , 72 P.3d 425, 430 (Colo.App. 2003) (noting that the statute in effect at the time the claim accrues generally governs the claim, unless the General Assembly clearly intends otherwise).

2. "[M]entally [I]ncompetent"

a. Law

¶ 21 A person is "mentally incompetent" if she is "insane," "mentally ill," "gravely disabled," or if she is a "person with a developmental disability." § 27-10.5-135(1), C.R.S. 2005. (A similar provision is now codified at section 25.5-10-237(1), C.R.S. 2016. See Ch. 323, sec. 1, § 25.5-10-237(1), 2013 Colo. Sess. Laws 1780.) T.D. does not contend that she was insane, so we will only address the other definitions of the term "mentally incompetent."

• A person is "mentally ill" if she has a "substantial disorder of the cognitive, volitional, or emotional processes that grossly impairs judgment or capacity to recognize reality or to control behavior[.]" § 27-10-102(7), C.R.S. 2005. (A similar provision is now codified at section 27-65-102(14), C.R.S. 2016. See Ch. 298, sec. 2, § 27-10-107(8.5), 2006 Colo. Sess. Laws 1373-74 (removing "mentally ill person" from the statute and adding "person with a mental illness"); see also Ch. 188, sec. 2, § 27-65-102(14), 2010 Colo. Sess. Laws 678 (relocating the definition for "person with a mental illness").)

• A person is "gravely disabled" if, because of mental illness, she (1) is "in danger of serious physical harm" based on her "inability or failure to provide [for herself] the essential human needs of food, clothing, shelter, and medical care"; or (2) lacks judgment in managing her resources and social relations "to the extent that [her] health or safety is significantly endangered," and that she "lacks the capacity to understand that this is so." § 27-10-102(5)(a), C.R.S. 2005. (A similar provision is now codified at section 27-65-102(9)(a), C.R.S. 2016. S

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