Zephier v. Catholic Diocese of Sioux Falls

• Decision Date: 25 June 2008
• Docket Number: No. 24194.,No. 24124.,24124.,24194.
• Citation: 2008 SD 56,752 N.W.2d 658
• Parties: Sherwyn B. ZEPHIER, et al., Plaintiffs and Appellants, v. CATHOLIC DIOCESE OF SIOUX FALLS; Blue Cloud Abbey; Sisters of the Blessed Sacrament; and Oblate Sisters of the Blessed Sacrament, Defendants and Appellees.
• Court: South Dakota Supreme Court

752 N.W.2d 658

2008 SD 56

Sherwyn B. ZEPHIER, et al., Plaintiffs and Appellants, v. CATHOLIC DIOCESE OF SIOUX FALLS; Blue Cloud Abbey; Sisters of the Blessed Sacrament; and Oblate Sisters of the Blessed Sacrament, Defendants and Appellees.

No. 24124.

No. 24194.

Supreme Court of South Dakota.

Argued on October 1, 2007.

Decided June 25, 2008.

Gregory A. Yates of Law Offices of Gregory A. Yates, PC, Rapid City, South Dakota, Gregory A. Yates of Law Offices of Gregory A. Yates, PC, Encino, California, Attorneys for plaintiffs and appellants.

Jeremiah D. Murphy of Murphy, Goldhammer & Prendergast, LLP, Sioux Falls, South Dakota, Charles Goldberg, Rothgerber Johnson & Lyons, LLP, Denver, Colorado Eric V. Hall of Rothgerber Johnson & Lyons, LLP, Colorado Springs, Colorado, Attorneys for defendant and appellee Catholic Diocese.

Eric Schulte of Davenport, Evans, Hurwitz & Smith, LLP, Sioux Falls, South Dakota, Robert Stich of Stich, Angell, Kreidler & Dodge, PA, Minneapolis, Minnesota, Attorneys for defendant and appellee Blue Cloud Abbey.

Michael J. Ford, Dyan J. Ebert, Heidi N. Thoennes of Quinlivan & Hughes, PA, St. Cloud, Minnesota, Attorneys for defendant and appellee Oblate Sisters of the Blessed Sacrament.

Christopher W. Madsen, Thomas J. Welk of Boyce, Greenfield, Pashby & Welk, LLP, Sioux Falls, South Dakota, Attorneys for defendant and appellee Sisters of the Blessed Sacrament.

ZINTER, Justice.

[¶ 1.] Seventy-two former students of St. Paul's School brought suit against four entities claiming that they were responsible for mental, physical and/or sexual abuse during the years 1947-1954 and 1958-1973. The circuit court granted summary judgment in favor of all defendants, concluding that a statute of limitations barred the claims. Thereafter, ten of the students moved to amend the complaint attempting to show a timely filing. Before the circuit court's ruling on the motion to amend, nine of the students filed this appeal. Notwithstanding the filing of the appeal, the circuit court held a hearing on the merits and denied the motion to amend. The nine students now appeal the dismissal of their sex abuse claims and the denial of their motion to amend. We affirm in part, reverse in part, and remand.

I

[¶ 2.] The former students attended St. Paul's School (School) in Marty, South Dakota, located on the Yankton Sioux Reservation. Students allege that the Catholic Diocese of Sioux Falls operated the School; and Blue Cloud Abbey, Sisters of the Blessed Sacrament, and the Oblate Sisters of the Blessed Sacrament provided teachers and staff. It is undisputed that in 1975, the School was closed as a Roman Catholic school and was relinquished to the tribal government of the Yankton Sioux Tribe. The following year, the School's assets were transferred to the Marty Indian School Board, Inc. No claim is made against the Tribe or the Marty Indian School Board.

[¶ 3.] The complaint provides no specifics, such as the names of the alleged abusers, when and where the abuse occurred, or the nature of the students' claimed injuries. After some discovery, Defendants moved for summary judgment on the sex abuse claims¹ arguing that the statute of limitations had expired. The circuit court granted Defendants' motion, concluding students did not present sufficient evidence that the "time the victim[s] discovered or reasonably should have discovered that the injury or condition was caused by the [abuse]" occurred within three years of commencing the suit as required in SDCL 26-10-25. The circuit court reasoned that Defendants' initial showing reflected that the three-year statute had expired, and the students' responsive affidavits failed to satisfy their burden of demonstrating a disputed issue of fact in avoidance of the statute of limitations defense. The court stated:

[A]s a matter of law, [Defendants] ha[ve] demonstrated that [students] have filed all their claims beyond the time allowed by ... 26-10-25 and, therefore, [students] have the burden of demonstrating that an exception to these statutes of limitations will excuse [their] untimely filing. Furthermore, the [c]ourt determines, as a matter of law, that [students] have failed to set forth specific facts in their Affidavits as required by SDCL 15-6-56(e) and have failed to present any evidence to support any exception to the applicable statute of limitations.

SDCL 26-10-25 is a "discovery" statute, and with respect to the students' responsive showing regarding the discovery of their injuries, the circuit court elaborated:

The facts provided by the complaint, the interrogatory answers, depositions and affidavits are absolutely void of any specific information. The affidavits are boiler plate and generally set forth in conclusory fashion that the [students] discovered the condition resulting from the conduct within the last three years but does not detail specifically when the discovery was made; how the connection was made; and where this discovery took place. Because there is no specific factual information provided by the [students], SDCL 26-10-25 cannot provide an exception to the statute of limitations defense against the [students'] claims based on sexual abuse.²

The circuit court finally concluded that fraudulent concealment and estoppel by duress were not supported by the record, and that estoppel by duress was not a viable legal theory in South Dakota. Because the court dismissed the students' claims on the statute of limitations, it did not consider the Diocese's arguments that it had no control, supervision, or official relationship with the School, and that the students' claims are barred by the constitutional principle of separation of church and state. The circuit court also did not address the Diocese's and Oblate Sisters' argument that SDCL 26-10-25 applies only to perpetrators and not third party entities who employed the alleged perpetrators.

[¶ 4.] After entry of the circuit court's order dismissing all claims, ten students moved to amend the complaint in an attempt to show a timely filing by setting forth more specific facts. Before the circuit court's ruling on this motion to amend, nine students filed this appeal. Notwithstanding the appeal, the circuit court held a hearing on the merits and denied the motion to amend. The court did not consider the question of its jurisdiction once a notice of appeal had been filed.

[¶ 5.] The nine students now appeal raising two issues:

Whether the circuit court erred in granting Defendants' motion for summary judgment; and

Whether the circuit court erred in denying the students' motion for leave to amend the complaint.

II

[¶ 6.] "Under our familiar standard of review in summary judgment cases, we decide only whether genuine issues of material fact exist and whether the law was correctly applied." Bordeaux v. Shannon County Sch., 2005 SD 117, ¶ 11, 707 N.W.2d 123, 126. In addressing a motion for summary judgment, this Court views the evidence most favorably to the non-moving party and the burden of proof is on the moving party to show that there are no genuine issues of material fact. Wulf v. Senst, 2003 SD 105, ¶ 17, 669 N.W.2d 135, 141. While we often distinguish between the moving and non-moving party in referring to the parties' summary judgment burdens, the more precise inquiry looks to who will carry the burden of proof on the claim or defense at trial. Entry of summary judgment is mandated against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial. See Celotex Corp v. Catrett, 477 U.S. 317, 322-23, 106 S.Ct. 2548, 2552, 91 L.Ed.2d 265, 273 (1986).³

III

[¶ 7.] The issue in this appeal is whether students commenced their actions within the time allowed by SDCL 26-10-25. That statute provides:

Any civil action based on intentional conduct brought by any person for recovery of damages for injury suffered as a result of childhood sexual abuse shall be commenced within three years of the act alleged to have caused the injury or condition, or three years of the time the victim discovered or reasonably should have discovered that the injury or condition was caused by the act, whichever period expires later.

SDCL 26-10-25 (emphasis added).

[¶ 8.] As previously noted, the circuit court concluded that the students failed to carry their burden of establishing an exception to the statute of limitations. The court stated: Defendants "demonstrated that [students] have filed all their claims beyond the time allowed by ... [SDCL] 26-10-25 and, therefore, [students] have the burden of demonstrating that an exception to these statutes of limitations will excuse [their] untimely filing." In reviewing this decision, we first discuss who had the summary judgment burden on this defense.⁴ We then determine whether the party with that burden established entitlement to summary judgment.

[¶ 9.] SDCL 26-10-25 is an affirmative defense, and the burden of proof to establish affirmative defenses is on the party who seeks to rely on it. Clancy v. Callan, 90 S.D. 115, 118, 238 N.W.2d 295, 297 (1976) (citing Lang v. Burns, 77 S.D. 626, 97 N.W.2d 863, 865 (1959)). The burden of production, however, shifts. "In summary judgment proceedings, where the defendant asserts the statute of limitations as a bar to the action, and presumptively establishes the defense by showing the case was instituted beyond the statutory period, the burden then shifts to the plaintiff to establish the existence of material facts in avoidance of the statute of limitations[.]" Conway v. Conway, 487 N.W.2d 21, 23 (S.D.1992). See also Huron Center, Inc. v. Henry Carlson, Inc., 2002 SD 103, ¶ 11 n2, 650 N.W.2d 544, 548 (providing, "[o]nly when Defendants have presumptively established their defense by showing the action was brought beyond the statutory period ... does the burden shift to [Plaintiff] to demonstrate...