Present: All the Justices
CORINNE GRIMES
OPINION BY JUSTICE LEROY R. HASSELL, SR.
v. Record No. 002536 September 14, 2001
RONALD SUZUKAWA
FROM THE CIRCUIT COURT OF THE CITY OF ALEXANDRIA
J. Peyton Farmer, Judge
In this appeal, we consider whether a plaintiff, who
filed an action alleging intentional torts against a defendant
was entitled to rely upon the tolling provision contained in
Code § 8.01-229(D).
Plaintiff, Corinne Gruber Grimes, filed her motion for
judgment against the defendant, Ronald Suzukawa, on May 12,
2000. She alleged the following. On September 27, 1992, the
plaintiff was threatened and sexually assaulted by the
defendant, "who had broken and entered into her apartment at
approximately 2:45 a.m." The defendant covered his face with
a mask, entered the plaintiff's bedroom, and threatened to
hurt her if she screamed. The defendant bound the plaintiff's
hands with a cord and sexually molested her.
The plaintiff alleged causes of action against the
defendant for sexual assault and battery, intentional
infliction of emotional distress, trespass, false
imprisonment, and assault and battery. The plaintiff sought
compensatory and punitive damages for her alleged injuries.
The defendant filed a responsive pleading and a plea in
bar. He asserted in his pleadings that the plaintiff's causes
of action arose on September 27, 1992, and that her actions
were barred by the applicable statutes of limitations.
The plaintiff filed a memorandum in response to the
defendant's plea in bar and asserted that her claims were
tolled by Code § 8.01-229(D), which states in relevant part:
"When the filing of an action is obstructed by
a defendant's . . . (ii) using any other direct or
indirect means to obstruct the filing of an action,
then the time that such obstruction has continued
shall not be counted as any part of the period
within which the action must be brought."
The plaintiff argued that she "had no way of knowing her
assailant's identity until 16 July 1999 when [d]efendant
confessed his crimes to the police [and, therefore,] she could
not until then bring an action to redress the injuries that
[d]efendant had deliberately inflicted upon her."
The litigants did not submit any evidence to the circuit
court, which decided the case based on the pleadings,
argument, and memoranda of counsel. The circuit court entered
an order sustaining the defendant's plea in bar and dismissing
the plaintiff's motion for judgment with prejudice. The
plaintiff appeals.
On appeal, the plaintiff "concedes that her causes of
action arose on 27 September 1992, more than seven years prior
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to the filing of her motion for judgment." The plaintiff also
concedes that in the absence of an applicable statutory
tolling provision, her claims are barred. However, the
plaintiff asserts that the defendant deliberately concealed
his identity from her when he committed his crimes and he
evaded capture by the police for nearly seven years and that
these acts tolled the statute of limitations. The defendant
responds that the plaintiff failed to establish that his
conduct constituted a direct or indirect means to obstruct the
filing of the plaintiff's tort actions within the meaning of
Code § 8.01-229(D) and, therefore, the circuit court did not
err in dismissing the motion for judgment. We agree with the
defendant.
A plaintiff who seeks to rely upon the tolling provision
in Code § 8.01-229(D) must establish that the defendant
undertook an affirmative act designed or intended, directly or
indirectly, to obstruct the plaintiff's right to file her
action. See Hawks v. DeHart, 206 Va. 810, 814, 146 S.E.2d
187, 190 (1966); Culpeper Nat'l Bank v. Tidewater Improvement
Co., 119 Va. 73, 82-84, 89 S.E. 118, 121 (1916); see also
Fines v. Kendrick, 219 Va. 1084, 1086-87, 254 S.E.2d 108, 110
(1979).
In this case, the plaintiff presented no evidence that
the defendant used any direct or indirect means to obstruct
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the filing of her motion for judgment. At best, the plaintiff
pled in her motion for judgment that the defendant wore a mask
during the commission of his heinous crimes, but his use of
the mask was intended to conceal his identity and not to
obstruct her filing of an action within the intendment of Code
§ 8.01-229(D).
Accordingly, we will affirm the judgment of the circuit
court.
Affirmed.
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