Travis v. Ziter, 1941356.

• Court: Supreme Court of Alabama
• Writing for the Court: ALMON, Justice
• Citation: 681 So.2d 1348
• Parties: Steve TRAVIS and Renee Travis v. Nelson ZITER, et al.
• Docket Number: 1941356.
• Decision Date: 12 July 1996

681 So.2d 1348

Steve TRAVIS and Renee Travis
v.
Nelson ZITER, et al.

1941356.

Supreme Court of Alabama.

July 12, 1996.

681 So.2d 1349

COPYRIGHT MATERIAL OMITTED

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Archie C. Lamb, Jr. of Levin, Middlebrooks, Mabie, Mitchell, Papantonio & Lamb, Birmingham, and Elizabeth J. Hubertz and Pamela L. Sumners, Birmingham, for Appellants.

Charles N. McKnight, Mobile, for Father Nelson B. Ziter.

F. Grey Redditt and Deborah B. Hembree of Adams and Reese, Mobile, for Most Rev. Oscar H. Lipscomb, Archbishop of Mobile, a Corporation Sole; and Most Rev. Oscar H. Lipscomb, Archbishop of Mobile.

D. Scott Wright and Thomas H. Nolan, Jr. of Brown, Hudgens, P.C., Mobile, and Fred M. McCormick and P. Vaughn Russell of McCormick & Russell, Selma, for Father Roger Lacharite and the Society of St. Edmund.

Robert H. Smith of Collins, Galloway & Smith, Mobile, for National Conference of Catholic Bishops, United States Catholic Conference and Archbishop William H. Keeler.

ALMON, Justice.

The plaintiffs appeal from a judgment holding that their action is barred by the statutes of limitations. Steve Travis and his wife Renee Travis brought this action in 1994, alleging assault and battery, negligence, negligent hiring and supervision, wantonness, outrage, civil conspiracy, and breach of fiduciary duty against Father Nelson B. Ziter, Archbishops Oscar H. Lipscomb and William H. Keeler, Rev. Roger J. Lacharite, the Archdiocese of Mobile, the Society of St. Edmund, the National Conference of Catholic Bishops, and the United States Catholic Conference. Specifically, the Travises allege that Steve Travis was subjected to both physical and sexual abuse at the hands of Fr. Ziter between the years 1974 and 1979, while Steve was a minor. The defendants filed motions to dismiss, Rule 12(b)(6), A.R.Civ.P., arguing that the complaint is barred on its face by the applicable statutes of limitations because, they argued, the various causes of action accrued no later than 1979. In opposition to the motion to dismiss, the Travises argue that Steve was unaware of his causes of action until 1993, claiming that he had repressed memory of the events until then, when, they say, a visit to Fr. Ziter "triggered" a memory of the events. The Travises recognize that they brought this action in 1994, well after the applicable statutes of limitations otherwise would have barred the action,¹ but they argue that the memory repression

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should be held to toll the running of the limitations period; they claim the benefit of the disability of insanity, which allows a plaintiff to file at any time up until three years after the termination of the "disability" that existed when the cause of action "accrued." § 6-2-8, Ala. Code 1975

A dismissal based on the statute of limitations is proper only if, from the face of the complaint, it is apparent that the tolling provisions do not apply. Williams v. Capps Trailer Sales, 589 So.2d 159, 160 (Ala.1991). If the court considers matters outside the pleadings in ruling on the defendant's motion to dismiss, then the motion is converted into a motion for summary judgment, regardless of how the motion was styled. Rule 12(b), Ala.R.Civ.P.; Papastefan v. B & L Constr. Co., 356 So.2d 158 (Ala.1978). The circuit court held a hearing to consider the defendants' motions to dismiss, and the Travises presented affidavits from Steve Travis and the clinical psychologist who had been treating him. Because there was no indication during the course of the hearing, or in the circuit court's order dismissing the plaintiff's claims, that the court had excluded the affidavits, we must assume that the circuit court considered them when it ruled on the motions. Thus, we must analyze the motions to dismiss under the summary judgment standard. Rule 12(b), Ala.R.Civ.P.

In reviewing a summary judgment, we must determine whether the movant made a prima facie showing that there was no genuine issue of material fact and that the movant was entitled to a judgment as a matter of law. If the movant made that showing, then the burden shifted to the nonmovant to rebut that showing by presenting substantial evidence creating a genuine issue of material fact. In determining whether the trial court was presented substantial evidence creating a genuine issue of material fact, a reviewing court must examine the record in a light most favorable to the nonmoving party and must resolve doubts in favor of the nonmoving party. Rule 56(c), Ala.R.Civ.P.; Martin v. Arnold, 643 So.2d 564 (Ala.1994); Southern Guar. Ins. Co. v. First Alabama Bank, 540 So.2d 732 (Ala. 1989); Harbison v. Albertville Nat'l Bank, 495 So.2d 1084 (Ala.1986). "Substantial evidence is evidence of such weight and quality that fair-minded persons in the exercise of impartial judgment can reasonably infer the existence of the fact sought to be proved." West v. Founders Life Assurance Co., 547 So.2d 870, 871 (Ala.1989).

The only evidence before the circuit court was the two affidavits submitted by the Travises. The defendants presented no evidence. Normally, a defendant's failure to present evidence in support of its summary judgment motion (here, a motion to dismiss treated as a summary judgment motion) would prevent the burden from shifting to the nonmovant to come forward with evidence in response to the motion. In such cases, a summary judgment would be inappropriate. See Mixon v. Cason, 622 So.2d 918, 921 (Ala.1993). However, even assuming the truth of Steve Travis's claim that he suffered from post-traumatic stress disorder and as a result repressed all memory of the alleged abuse until 1993, as alleged in the complaint and the affidavits, we are faced with a question of law: Whether the combination of post-traumatic stress disorder and repressed memory can be considered an "insanity" disability, within the meaning of § 6-2-8, Ala. Code 1975, that will toll the running of the limitations period.

The controversial question of repressed memory of childhood sexual abuse has been the subject of numerous studies and law review articles. See, e.g., Gary M. Ernsdorff & Elizabeth F. Loftus, Let Sleeping Memories Lie? Words of Caution About Tolling the Statute of Limitations in Cases of Memory Repression, 84 J.Crim. L. & Criminology 129 (1993); Report of the Council on Scientific Affairs, American Medical Association, Memories

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of Childhood Abuse, CSA Report 5-A-94; Mark MacNamara, Fade Away, The Rise and Fall of Repressed-Memory Theory in the Courtroom, Cal. Law., Mar. 1995, at 36; Julie Schwartz Silberg, Note, Memory Repression: Should it Toll the Statutory Limitations Period in Child Sexual Abuse Cases?, 39 Wayne L.Rev. 1589, 1591 (1993). Review of these studies and articles leads to one conclusion: There is no consensus of scientific thought in support of the repressed memory theory

With these concerns in mind, we begin our analysis with the tolling provision the Travises ask us to apply in their case:

"(a) If anyone entitled to commence any of the actions enumerated in this chapter... is, at the time such right accrues, below the age of 19 years, insane or imprisoned on a criminal charge for any term less than for life, he shall have three years, or the period allowed by law for the commencement of such action if it be less than three years, after the termination of such disability to commence an action...."

§ 6-2-8, Ala. Code 1975 (emphasis added). Although the strict application of statutes of limitations is tempered somewhat by the narrow exceptions prescribed in the tolling provisions, the public policy behind the time-bar concept is quite clear:

"Statutes of limitations are founded in part at least on general experience that claims which are valid usually are not allowed to remain neglected, and that the lapse of years without any attempt to enforce a demand creates a presumption against its original validity or that it has ceased to exist. The basic principle most generally relied on by the authorities is that statutes of limitations are statutes of repose, the object of which is to prevent fraudulent and stale claims from springing up after long periods of time and surprising the parties or their representatives when evidence has become lost or the facts have become obscure from the lapse of time. 53 C.J.S. Limitations of Actions § 1, at 902-903, and authorities cited therein."

Stephens v. Creel, 429 So.2d 278 (Ala.1983) (quoting Seybold v. Magnolia Land Co., 376 So.2d 1083, 1086 (Ala.1979)). Because...