Vest v. Bossard

• Decision Date: 18 February 1983
• Docket Number: No. 81-2148,81-2148
• Parties: Edwin Dean VEST, Plaintiff-Appellant, v. Sterling BOSSARD, Hans Chamberlain, Ira Schoppmann, James Nelson and John Does One to One Hundred, Defendants-Appellees.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 600

700 F.2d 600

Edwin Dean VEST, Plaintiff-Appellant, v. Sterling BOSSARD, Hans Chamberlain, Ira Schoppmann, James Nelson and John Does One to One Hundred Defendants-Appellees.

No. 81-2148.

United States Court of Appeals Tenth Circuit.

Feb. 18, 1983.

John Walsh, Salt Lake City, Utah, for plaintiff-appellant.

Allan L. Larson of Snow, Christensen & Martineau, Salt Lake City, Utah, for all defendants-appellees.

Nelson L. Hayes of Richards, Brandt, Miller & Nelson, Salt Lake City, Utah, for defendants-appellees Chamberlain and Schoppmann (P. Keith Nelson and Donald J. Purser, Richards, Brandt, Miller & Nelson, Salt Lake City, Utah, for defendants-appellees Chamberlain & Schoppmann, and David L. Wilkinson, Atty. Gen., and Franklyn B. Matheson, Asst. Atty. Gen., Salt Lake City, Utah, for defendants-appellees Sterling Bossard and James Nelson, on the briefs).

Before DOYLE, McKAY and LOGAN, Circuit Judges.

WILLIAM E. DOYLE, Circuit Judge.

The problem here is, as we know, one in which the tolling or non-tolling of the statute of limitations is involved.

Plaintiff was falsely charged with a heinous offense, sodomy. Vest, of course, knew that he had suffered an injury. He did not know that there had been a conspiracy and, of course, was unaware of the identity of the conspirators. Meanwhile the statute of limitations had run as of the time that the boy admitted the truth to plaintiff. But the conspiracy also included what might be called a cover-up in order to utilize the statute of limitations as a defense. The Utah cases which are here presented all recognize that where the party in question is unaware of the identity of the perpetrators or of the incident, the statute is tolled and an evidentiary hearing is in order for the purpose of ascertaining the true facts.

The applicable statute is the Utah one Sec. 78-12-1 which provides that "civil actions can be commenced only within the period prescribed in this chapter, after the cause of action shall have accrued, except where in special cases a different limitation is prescribed by statute." Sec. 78-12-25(2) provides "an action for relief not otherwise provided for by law must be commenced within four years." The particular offense involving Vest is not covered expressly by any statute but the four year statute is regarded as a catch-all provision.

One of the Utah cases deals with concealment of the accrual of the cause of action by the defendant. This is Myers v. McDonald, 635 P.2d 84. The issue in that case was whether the statute tolled in a wrongful death action in which the two year statute of limitations applied. In that case the plaintiffs were unaware of the facts and circumstances of the decedent's death until after the statutory period. As in this case, the district court dismissed the complaint as barred by the statute of limitations. However, the Utah Supreme Court reversed that judgment, calling attention to the particular facts. The plaintiffs, husband and wife, were guardians of fourteen year old Bobbie Menzies, the wife's brother. Bobbie failed to return home after meeting with some friends. Plaintiffs reported his disappearance to the police. Because he was a minor the police department listed him as a runaway rather than as a missing person. The latter status would have resulted in an automatic check of the local morgue. The plaintiffs made several contacts during the ensuing year with the police in order to determine the boy's whereabouts. They also read newspaper articles concerning a November 26th, 1976 automobile accident in Salt Lake County in which a car collided with a large tree that resulted in the death of a mysterious passenger and identified by the driver of the vehicle only as Joey. This victim was described as being five feet eight inches tall, with brown hair and in his early twenties. Bobbie, however, was six feet two inches tall, blond and fourteen years of age. Plaintiffs did not identify Bobbie as the victim at that time. Sometime after the disappearance of the boy the police detectives contacted the plaintiffs as part of a follow-up. In response to plaintiffs' inquiries he told them that the mysterious accident victim had not yet been identified. Plaintiffs went to the morgue after that and identified the accident victim as their ward Bobbie. On October 29, 1979, almost three years after the fatal accident, but only three months after the identification of the body of their ward, plaintiffs brought the wrongful death action against the defendant driver of the accident vehicle alleging intoxication and/or wilful misconduct. The statute of limitations was interposed. The plaintiffs maintained that the cause of action should not accrue until discovery of the death inasmuch as they had been misled by the report that the decedent's name was Joey; that they were thus discouraged from making any inquiry.

The Utah Supreme Court outlined the policy of the statute as follows:

The governing policy in this area, as declared by the United States Supreme Court, is that statutes of limitations "are designed to promote justice by preventing surprises through the revival of claims that have been allowed to slumber until evidence has been lost, memories have faded and witnesses have disappeared." In furtherance of that policy, the general rule is that a cause of action accrues upon the happening of the last event necessary to complete the cause of action. Under that rule, mere ignorance of the existence of a cause of action does not prevent running of the statute of limitations. 635 P.2d at 86. [citation omitted] [footnotes omitted]

The court went on to say that:

There are a number of exceptions to this general rule. In some enumerated areas of the law, our Legislature has adopted the discovery rule by statute so that the limitations period does not begin to run until the discovery of facts forming the basis of the cause of action.

In other circumstances, where the statute of limitations would normally apply, this Court has held that proof of concealment or misleading by the defendant precludes the defendant from relying on the statute of limitations. Id. [footnotes omitted]

The court said that this was the plaintiffs' second theory in the case and further said that courts of some states have adopted this so-called discovery rule by judicial action in exceptional circumstances where the application of the general rule would be irrational or unjust. The court concluded "Those precedents point the way toward what we deem to be the appropriate decision in this case." Id.

The case was remanded and regarding remand the court said:

If plaintiffs are unable to prove their allegations of due diligence at trial, this action would still be barred by the statute of limitations unless plaintiffs can prevail by proof of their alternate theory of concealment or misleading by defendant. All we hold here is that it was improper for the trial court to dismiss plaintiffs' action on the pleadings on the basis of the statute of limitations. Id., at 87.

The Myers v. McDonald case is very similar but not as extreme as the case at bar. Here the defendants are charged with entering into a conspiracy to hide the commission of the wrong against the plaintiff. That gives rise to a much more aggravated problem.

In the Myers case the Utah Supreme Court very readily declared the law of that state as being that the statute is tolled where the plaintiffs, as guardians, alleged that they did not know of their ward's death due to defendants' erroneously reporting their ward's name to the authorities.

In the event that the plaintiffs would be able to prove due diligence, the policy against stale claims was said by the court to be outweighed by the unique circumstances of plaintiffs' hardship inasmuch as plaintiffs could not file an action for damages or even initiate investigative efforts to determine the cause of the death of which they had no knowledge. In such circumstances, the court said, "the law would be in the untenable position of having created a remedy for plaintiffs and then barring them from exercising it before they had any practical opportunity to do so." Id.

Similarly in the Vest case the reasoning there would be that the factual question should be resolved in his favor due to his inability to determine whether he had any practical opportunity to bring an action or to vindicate his position in view of the express effort to hide what had happened until the statute had run so that the participants could utilize it inequitably and to their advantage.

The Myers court cites the case of Vincent v. Salt Lake County, Utah, 583 P.2d 105 (Utah 1978) in support of its ruling that defendants cannot conceal material facts then find shelter behind a statute of limitations. In Vincent plaintiff knew that his garage was damaged by underground water but did not know what the water's source was. The county had installed a drainage pipe before plaintiff owned the property. There was no easement record for that pipe and plaintiff did not discover it when he built his house. Both county employees and a superior who knew the pipe was there and had reason to know that its joints were unsealed told plaintiff that no county pipe could be causing the damage. That concealment caused the Utah Supreme Court to reverse the trial court's ruling that the statute of limitations barred plaintiff's action.

Also cited in Myers is Rice v. Granite School District, 23 Utah 2d 22, 456 P.2d 159 (1969). There insurance adjusters led plaintiff to believe that she need not file a claim because defendant admitted liability and only damages needed to be settled. The Utah Supreme Court reversed the trial court's summary judgment that plaintiff's action was barred by the statute of limitations. It held that defendants cannot induce plaintiffs to delay filing claims and then assert the statute of limitations.

During oral arguments in the Vest case, this court, by way of...