Doe A. v. Diocese of Dallas

NO. 5-06-0383
N O T IC E

Decision filed 03/07/08. The text of
IN THE
this dec ision m ay b e changed or

corrected prior to the filing of a
APPELLATE COURT OF ILLINOIS
P e t i ti o n for Re hea ring or the

disposition of the same.
FIFTH DISTRICT
________________________________________________________________________
JOHN DOE A., ) Appeal from the
) Circuit Court of
Plaintiff-Appellant, ) St. Clair County.
)
v. ) No. 03-L-713
)
DIOCESE OF DALLAS, DIOCESE )
OF BELLEVILLE, ARCHDIOCESE )
OF ST. LOUIS, and FATHER )
KENNETH ROBERTS, ) Honorable
) Lloyd A. Cueto,
Defendants-Appellees. ) Judge, presiding.
________________________________________________________________________

JUSTICE CHAPMAN delivered the opinion of the court:

John Doe A. appeals from the trial court's February 17, 2006, order dismissing his
complaint with prejudice as being barred under the 1994 childhood sexual abuse statute of

limitations (735 ILCS 5/13-202.2 (West 1994)) and concluding that a more recent

limitations statute for survivors of childhood sexual abuse (735 ILCS 5/13-202.2 (West
Supp. 2003)) was inapplicable because the earlier applicable limitations period had already
expired before the enactment of the later statute and thus could not be revived by this later

legislative enactment. We reverse and remand.
The plaintiff in this case alleges that he was sexually molested by Father Kenneth
Roberts one time in 1984 when Father Roberts was a guest speaker at the plaintiff's Catholic

grade school in Belleville, Illinois. As we will detail in this opinion, allegations of sexual
misconduct had been lodged against Father Roberts prior to this Belleville engagement.

The plaintiff was born on May 5, 1970, into a devout Catholic family. By 1984, the
plaintiff was considering entering the priesthood. Father Roberts came to speak at the

1
plaintiff's school–St. Mary's Catholic Elementary School. Because of his background as a

Catholic author and international speaker, Father Roberts has a prominent reputation.
During the week that Father Roberts was in residence for purposes of his speaking
engagement in Belleville, Illinois, the plaintiff sought permission to leave class in order to
counsel with Father Roberts about his inclinations toward the priesthood. It was during this
session in the parish rectory that the alleged abuse occurred. The plaintiff did not return for

an additional discussion with Father Roberts, and in fact, he never saw him again.

The plaintiff went on through high school, and while he continued to explore a
possibility of entering the priesthood by participating in an out-of-state religious retreat, he
ultimately elected to go down a different occupational path outside of the Catholic Church.

Because of his religious beliefs and teachings relative to the position held by priests within
the Catholic Church, the plaintiff contends that he simply did not understand that what took

place with Father Roberts in 1984 was inappropriate or illegal. Approximately four years

later, the plaintiff began thinking that Father Roberts' words and actions had been

inappropriate. In December 1998, in a moment of great mental anguish, the plaintiff went

to the emergency room at St. Louis University Hospital, where he told an emergency room
physician what had happened between him and Father Roberts back in 1984. This physician
was the first person to hear the plaintiff's allegations. Thereafter, the plaintiff received

treatment from two physicians upon his release from St. Louis University Hospital. During

the course of that treatment, the plaintiff finally came to understand that he had been injured
by Father Roberts. The plaintiff filed this lawsuit on November 12, 2003. He filed his
claim against the Diocese of Dallas, the Diocese of Belleville, the Archdiocese of St. Louis,

and Father Kenneth Roberts. The lawsuit was in three fraud-based counts, with allegations
that the diocese defendants concealed knowledge that Father Roberts had sexually abused
children before the encounter with the plaintiff, that there was no way for the plaintiff to

2
have discovered this information, and that had he known, the plaintiff would not likely have

had his 1984 meeting with Father Roberts.
In response to the suit, Father Roberts filed a motion to dismiss on the basis that the
suit was barred by the statute of limitations. The Diocese of Dallas and the Archdiocese of
St. Louis filed motions to dismiss alleging the court's lack of personal jurisdiction. The
Diocese of Belleville filed no motion.

The trial court held a hearing on these motions to dismiss on February 1, 2006. No

argument was made about the statute of limitations relative to the diocese defendants,
although the plaintiff did argue against the statute of limitations as it pertained to Father
Roberts. The trial court ruled on the motions on February 17, 2006, concluding that the

statute of limitations barred all of the plaintiff's claims. The plaintiff filed a motion to
reconsider on the basis that the diocese defendants had never raised the limitations defense.

The trial court denied the motion on July 6, 2006. From the rulings on those motions, the

plaintiff appeals to this court.

On appeal from a trial court's involuntary dismissal of a complaint pursuant to section

2-619 of the Code of Civil Procedure (Code) (735 ILCS 5/2-619 (West 2004)), we must
determine " 'whether the existence of a genuine issue of material fact should have precluded
the dismissal or, absent such an issue of fact, whether dismissal is proper as a matter of

law.' " Doyle v. Holy Cross Hospital, 186 Ill. 2d 104, 110, 708 N.E.2d 1140, 1144 (1999)

(quoting Kedzie & 103rd Currency Exchange, Inc. v. Hodge, 156 Ill. 2d 112, 116-17, 619
N.E.2d 732, 735 (1993)). In other words, our review is de novo. In re Estate of Mayfield,
288 Ill. App. 3d 534, 542, 680 N.E.2d 784, 789 (1997).

Initially, we must determine if the trial court erred in sua sponte dismissing the case
with regard to all the defendants on the basis of the statute of limitations. No one questions
the factual statement that only defendant Father Roberts filed a motion to dismiss on the

3
limitations defense. Yet, the trial court dismissed the entire case–not just the case as it

related to Father Roberts. The plaintiff argues that this is improper unless all the parties
have raised and argued the issue. However, that is not quite in keeping with the case law.
Generally speaking, a trial court "may grant a motion to dismiss even as to nonmoving
defendants where the nonmoving defendants are in a position similar to that of moving
defendants or where the claims against all defendants are integrally related." Bonny v.

Society of Lloyd's, 3 F.3d 156, 162 (7th Cir. 1993) (citing Rosser v. Chrysler Corp., 864

F.2d 1299 (7th Cir. 1988); Silverton v. Department of Treasury, 644 F.2d 1341, 1345 (9th
Cir. 1981); and Loman Development Co. v. Daytona Hotel & Motel Suppliers, Inc., 817 F.2d
1533, 1537 (11th Cir. 1987)). More specifically, Illinois courts have rather routinely held

that the dismissal of an entire complaint on limitations grounds is allowable where at least
one defendant has filed a motion to dismiss on that basis. Cangemi v. Advocate South

Suburban Hospital, 364 Ill. App. 3d 446, 453-55, 845 N.E.2d 792, 800-02 (2006) (allowing

the dismissal of an entire complaint even with regard to defendants who had not yet been

served with process); Merritt v. Randall Painting Co., 314 Ill. App. 3d 556, 558-59, 732

N.E.2d 116, 117-18 (2000) (affirming a dismissal with regard to four unserved defendants).
In addition to the case law supporting the trial court's right to sua sponte dismiss the
plaintiff's complaint on limitations grounds, there is the practical reason for allowing this.

There would simply be no reason to allow a part of a lawsuit to continue just because a

defendant had not yet filed a proper motion to dismiss or other dispositive motion alleging
grounds identical to those already deemed appropriate to support a dismissal.
The plaintiff does argue that the basis for the limitations defense would be vastly

different for the diocese defendants than it would be for Father Roberts. However, the
plaintiff articulates no facts supporting this premise.
Accordingly, without commenting upon the ultimate issue, we find that the trial court

4
did not err in sua sponte dismissing the complaint with regard to the defendants who had not

yet raised that particular defense by way of a motion.
We next turn to the statute of limitations applicable in this case. The changes
resulting in the current limitations structure began in 1991. Before that time, abuse actions
seeking damages were treated as any other personal injury case. Galloway v. Diocese of
Springfield in Illinois, 367 Ill. App. 3d 997, 998, 857 N.E.2d 737, 738 (2006) (citing Benton

v. Vonnahmen, 288 Ill. App. 3d 199, 201-02, 679 N.E.2d 1270, 1272-73 (1997) (citing Ill.

Rev. Stat. 1989, ch. 110, par. 13-202 (now see 735 ILCS 5/13-202 (West 2006)); and Ill.
Rev. Stat. 1989, ch. 110, par. 13-211 (now see 735 ILCS 5/13-211 (West 2006)))). The
initial limitations statute specific to claims of childhood sexual abuse–section 13-202.2 of

the Code–was enacted by our legislature in September 1990; that amendment took effect on
January 1, 1991, and included a statute of repose which would not allow a plaintiff to file

a claim more than 12 years from the date that the plaintiff turned 18 years of age. Pub. Act

86-1346, §1, eff. January 1, 1991; Ill. Rev. Stat., 1990 Supp., ch. 110, par. 13-202.2; 735

ILCS 5/13-202.2 (West 1992). "In effect, then, the statute of repose barred claims for

childhood sexual abuse by anyone 30 years or older." Galloway, 367 Ill. App. 3d at 999,
857 N.E.2d at 738 (citing M.E.H. v. L.H., 177 Ill. 2d 207, 214, 685 N.E.2d 335, 339 (1997)).
In 1993, by an amendment, the legislature eliminated the statute of repose. Pub. Act

88-127, §5, eff. January 1, 1994; see 735 ILCS 5/13-202.2 (West Supp. 1993).

In 2003, the legislature further amended the relevant provision of the limitations
statute; the amendment extended the statute of limitations and added language clarifying
what it means for a plaintiff to discover his or her injury for purposes of triggering the

statute of limitations. Pub. Act 93-356, §15, eff. July 24, 2003; 735 ILCS 5/13-202.2 (West
Supp. 2003). Specifically, the statute of limitations is now 10 years or 5 years from "the date
the person abused discovers or through the use of reasonable diligence should discover both

5
(i) that the act of childhood sexual abuse occurred and (ii) that the injury was caused by the

childhood sexual abuse." 735 ILCS 5/13-202.2(b) (West 2006). Subsection (e) of this
statute addresses the applicability of the amendment and, with regard to the 2003
amendment, states, "The changes made by this amendatory Act of the 93rd General
Assembly apply to actions pending on the effective date of this amendatory Act of the 93rd
General Assembly as well as actions commenced on or after that date." (Emphasis added.)

735 ILCS 5/13-202.2(e) (West 2006).

The plaintiff was born on May 5, 1970. In this case, Father Roberts allegedly
assaulted the plaintiff in the spring of 1984 in Belleville. However, it was not until his
emergency room visit in December 1998, and his subsequent mental health treatment, that

he realized that the actions of Father Roberts against him in 1984 caused him injury. The
plaintiff filed suit against Father Roberts and the diocese defendants on November 12,

2003–several months past 19 years after the events in question. Given that time frame, the

plaintiff's suit was filed within five years of discovery. The plaintiff argues that his filing

was timely because the limitations period states that an individual has five years to file from

the date of the discovery that the sexual abuse occurred and the discovery that the injury was
caused by the childhood sexual abuse. 735 ILCS 5/13-202.2(b) (West 2006).
In order for this limitations period to be applicable, the plaintiff also argues that this

amended statute was legislatively intended for retroactive application. He cites to the

language of the statute itself, which provides that it applies to actions pending on the
effective date of the amendment "as well as actions commenced on or after that date"
(emphasis added)–July 24, 2003. 735 ILCS 5/13-202.2(e) (West 2006).

The defendants contend that the 2003 amendment to the child sexual abuse statute
of limitations cannot serve to revive an expired claim and that the legislature never intended
for a retroactive application of the statute for the purpose of reviving an expired claim.

6
 Given the plaintiff's minority at the time of the alleged sexual assault, the normal

personal injury statute of limitations would have begun to run after he turned 18 years of age
on May 5, 1988, with suit having to be filed within the following two years. Ill. Rev. Stat.
1989, ch. 110, par. 13-202 (now see 735 ILCS 5/13-202 (West 2006)); Ill. Rev. Stat. 1989,
ch. 110, par. 13-211 (now see 735 ILCS 5/13-211 (West 2006)). If somehow that had not
been applicable, then even under the 1991 statute of repose the deadline for filing this type

of lawsuit would have been on the plaintiff's thirtieth birthday–May 5, 2000. See Ill. Rev.

Stat., 1990 Supp., ch. 110, par. 13-202.2 (now see 735 ILCS 5/13-202.2 (West 2006)). If
either of these two limitation/repose periods applied to this case, it could serve to bar the
plaintiff's suit.

If the current statute of limitations is retroactive, then the plaintiff's lawsuit should
not have been dismissed. Therefore, we turn to the issue of retroactivity and explore the

development of that legal area.

Over time, a discrepancy developed in Illinois courts about the handling of the issue

of statutory retroactivity. The Illinois Supreme Court weighed in on the handling of the

discrepancy. Commonwealth Edison Co. v. Will County Collector, 196 Ill. 2d 27, 749
N.E.2d 964 (2001). Before the court's decision in Commonwealth Edison Co., Illinois
courts followed two distinct approaches to deciding the question. With the "vested rights

approach," the law applied was that which was in effect at the time of the appeal unless the

use of that law somehow interfered with a vested right. The term "vested right" was defined
to be an interest receiving interference protection by way of the due process clause of the
Illinois Constitution (Ill. Const. 1970, art. I, §2). Commonwealth Edison Co., 196 Ill. 2d at

34, 749 N.E.2d at 969 (citing First of America Trust Co. v. Armstead, 171 Ill. 2d 282, 289,
664 N.E.2d 36, 39 (1996)). With the vested rights approach, the legislature's intent
regarding retroactivity is not relevant. Commonwealth Edison Co., 196 Ill. 2d at 34, 749

7
N.E.2d at 969 (relying on Armstead, 171 Ill. 2d at 289, 664 N.E.2d at 39). Under the

"legislative intent approach," the presumption is against a retroactive application of the
statutory changes unless the legislature clearly indicates an intent that the amendments be
so applied. Commonwealth Edison Co., 196 Ill. 2d at 34, 749 N.E.2d at 969 (relying on
Armstead, 171 Ill. 2d at 288, 664 N.E.2d at 39 (relying on Rivard v. Chicago Fire Fighters
Union, Local No. 2, 122 Ill. 2d 303, 309, 522 N.E.2d 1195, 1199 (1988))).

In addressing this conflict, the Commonwealth Edison Co. court formally adopted a

test set forth by the United States Supreme Court in Landgraf v. USI Film Products, 511
U.S. 244, 128 L. Ed. 2d 229, 114 S. Ct. 1483 (1994). Commonwealth Edison Co., 196 Ill.
2d at 39, 749 N.E.2d at 972. Under the Landgraf approach, we must first determine if the

legislature expressed its intent relative to retroactivity. If the legislature's intent is clear, we
must give effect to that intent unless constitutional principles otherwise prohibit the

application. Commonwealth Edison Co., 196 Ill. 2d at 38, 749 N.E.2d at 971 (relying on

Landgraf, 511 U.S. at 272-73, 128 L. Ed. 2d at 256-57, 114 S. Ct. at 1500-01).

An exercise in determining legislative intent must always begin with the language

itself, which should be given its plain and ordinary meaning. When the statutory language
is "clear and unambiguous," we do not need to resort to other tools of statutory
interpretation. Paris v. Feder, 179 Ill. 2d 173, 177, 688 N.E.2d 137, 139 (1997).

If the legislature expressed no intent, then courts must determine "whether it would

impair rights a party possessed when he acted, increase a party's liability for past conduct,
or impose new duties with respect to transactions already completed." Landgraf, 511 U.S.
at 280, 128 L. Ed. 2d at 262, 114 S. Ct. at 1505. As noted in the dissent in Galloway:

"The second step of this inquiry is essentially the same as the vested rights approach
to retroactivity. The retroactivity cases that predate the supreme court's decision in
Commonwealth Edison Co. are thus still relevant. However, the vested rights inquiry

8
 is now a default rule that need only be considered in the absence of express

legislative intent regarding retroactivity." Galloway, 367 Ill. App. 3d at 1002, 857
N.E.2d at 741 (Chapman, J., dissenting) (citing Commonwealth Edison Co., 196 Ill.
2d at 38, 749 N.E.2d at 971 (relying on Landgraf, 511 U.S. at 273, 128 L. Ed. 2d at
257, 114 S. Ct. at 1501)).
The vested rights approach utilized before Commonwealth Edison Co. remains

relevant to our consideration of whether the retroactive application of a statute implicates

due process concerns. If a court determines that the retroactive application of a statutory
amendment offends due process, the court must go further in its analysis and determine if
the retroactive application unreasonably infringes on the rights implicated. To make a

determination on the reasonableness of the due process infringement, the court must take
fairness into consideration and balance the reasons advanced both for and against retroactive

application. Commonwealth Edison Co., 196 Ill. 2d at 47, 749 N.E.2d at 976 (relying on

Moore v. Jackson Park Hospital, 95 Ill. 2d 223, 241-42, 447 N.E.2d 408, 416 (1983) (Ryan,

C.J., specially concurring, joined by Underwood and Moran, JJ.)).

The balancing approach mandated by Landgraf and Commonwealth Edison Co.
marks a significant shift away from the approach to due process concerns followed under
the vested rights approach. Many courts utilizing the vested rights approach have concluded

that a retroactive application violated due process because the defendant maintained a vested

right in the affirmative defenses–statutes of limitations or repose. In reaching the conclusion
that a retroactive application violated due process, those courts failed to utilize the balancing
test mandated by Landgraf and Commonwealth Edison Co. See, e.g., Henrich v. Libertyville

High School, 186 Ill. 2d 381, 404-05, 712 N.E.2d 298, 310 (1998); M.E.H., 177 Ill. 2d at
214-15, 685 N.E.2d at 339; D.P. v. M.J.O., 266 Ill. App. 3d 1029, 1036, 640 N.E.2d 1323,
1328 (1994). Concluding the analysis without using the balancing test is an approach

9
expressly rejected by the supreme court. Commonwealth Edison Co., 196 Ill. 2d at 47, 749

N.E.2d at 976 (explaining that "[i]n assessing whether the application of a new statutory
amendment to an existing controversy violates due process, the question is not simply
whether the ' "rights" allegedly impaired are [labeled] "vested" or "non[]vested" ' " (quoting
In re Marriage of Semmler, 107 Ill. 2d 130, 137, 481 N.E.2d 716, 720 (1985))). In shifting
to the legislative intent approach, courts have become more deferential to legislative

determinations that the benefits of a retroactive application of a statute outweigh these

concerns. Commonwealth Edison Co., 196 Ill. 2d at 37-38, 749 N.E.2d at 971 (relying on
Landgraf, 511 U.S. at 272, 128 L. Ed. 2d 256-57, 114 S. Ct. at 1500-01). We conclude that
we must reconsider the retroactivity of the 1993 amendment under the principles announced

in Commonwealth Edison Co.
We must first determine if the legislature intended a retroactive application of its

2003 amendment. The 2003 amendment applies to cases filed on or after the date on which

the amendment went into effect. 735 ILCS 5/13-202.2(e) (West 2006). The plaintiff filed

this case shortly after the amendment went into effect. If we take the statutory language as

written, then the amendment would apply to this case–unless prohibited because of a
constitutional problem.
In Wheaton v. Suwana, 355 Ill. App. 3d 506, 823 N.E.2d 993 (2005), this court

considered retroactivity language nearly identical to that at issue here. Wheaton involved

an amendment to the statute of limitations for personal injury actions against public entities
or officials. The amended statute provided that it applied " 'to an action or proceeding
pending on or after this amendatory Act's effective date,' " unless either of two statutory

exceptions were applicable. Wheaton, 535 Ill. App. 3d at 510, 823 N.E.2d at 996 (quoting
745 ILCS 10/8-101(d) (West Supp. 2003)). We found that, unless one of the statutory
exceptions applied, this language indicated an intent that the changes be applied

10
retroactively. Wheaton, 355 Ill. App. 3d at 514, 823 N.E.2d at 999.

In Wheaton, however, the statute expressly provided that it did not apply to any
actions otherwise included within the scope of this language if applying the new statute
would take away a vested right, such as a statute of limitations defense. Wheaton, 355 Ill.
App. 3d at 515, 823 N.E.2d at 1000. The statute at issue in the instant case contains no
similar exception. On its face, the statute indicates a legislative intent that the amendment

be applied retroactively.

The defendants, however, point to dicta in a First District decision interpreting similar
language relating to the application of the 1990 amendment and reaching the opposite
conclusion. We find their argument unpersuasive. In D.P. v. M.J.O., 266 Ill. App. 3d 1029,

640 N.E.2d 1323 (1994), the First District Appellate Court found that a trial court erred in
dismissing a complaint pursuant to the statute of limitations in effect prior to the 1990

amendment, because it did not consider the plaintiffs' allegation that they were unable to

discover the abuse until years after it had occurred. D.P., 266 Ill. App. 3d at 1032, 640

N.E.2d at 1325. The court went on to state that it agreed with the defendant's argument that

"had this action been time[-]barred in 1990, the enactment of the amendatory act under
section 13-202.2 would not have been effective to revive an otherwise time-barred action."
D.P., 266 Ill. App. 3d at 1036, 640 N.E.2d at 1328. In reaching this conclusion, the court

seemed to acknowledge that, on its face, the statutory language providing that the

amendment was applicable to " 'actions pending on the effective date of [the 1990
amendment] as well as to actions commenced on or after that date' " could be construed to
include the case before it, which was filed after the effective date of the 1990 amendment.

D.P., 266 Ill. App. 3d at 1036, 640 N.E.2d at 1328 (quoting section 13-202.2(e) of the Code
(735 ILCS 5/13-202.2(e) (West 1992)) and noting that, because the action was filed after
the effective date, it was "arguably subject to inclusion within the scope" of this statutory

11
language). The court, however, found that the "constitutional problems which such a

construction would engender" mitigated in favor of a much narrower reading. D.P., 266 Ill.
App. 3d at 1036, 640 N.E.2d at 1328.
We emphasize that D.P. was decided seven years before the supreme court decided
Commonwealth Edison Co. As previously noted, courts then followed the vested rights
approach to retroactivity, under which legislative intent was " 'largely ignored' "

(Commonwealth Edison Co., 196 Ill. 2d at 34, 749 N.E.2d at 969 (quoting Armstead, 171

Ill. 2d at 289, 664 N.E.2d at 39)) and courts automatically found that retroactive changes to
statutes of limitations and repose violated due process without balancing the considerations
set forth by the Commonwealth Edison Co. court. Assuming that the law regarding

retroactivity before Commonwealth Edison Co. required the D.P. court to read into the
statutory language an exception that was not expressly contained therein, we do not believe

that the legislative intent approach to retroactivity requires us to do likewise. We conclude

that section 13-202.2(e) of the Code (735 ILCS 5/13-202.2(e) (West 2006)) evinces a clear

legislative intent that the 2003 amendment apply to all cases filed on or after its effective

date, including those in which the allegations of abuse relate to events that preceded the
amendment.
We next consider whether the retroactive application of the amendments would

violate due process. We note that only one of the defendants, the Diocese of Belleville,

raised a due process issue in the context of the statute of limitations as an affirmative
defense. None of the other defendants raised this issue before the trial court. Thus, they
have technically forfeited the consideration of their due process arguments on appeal.

However, forfeiture acts as a limitation on the parties, not the courts. People v. Murphy, 322
Ill. App. 3d 271, 278, 752 N.E.2d 19, 25 (2001). The considerations involved in a due
process issue are closely intertwined with the considerations involved in determining the

12
intended temporal reach of a statutory change. Further, we believe that it is desirable to

provide some clarification in the wake of Commonwealth Edison Co. Thus, we will address
the argument that a retroactive application violates due process. See Murphy, 322 Ill. App.
3d at 278, 752 N.E.2d at 25.
As previously discussed, Commonwealth Edison Co. teaches that we must balance
the reasons for and against a retroactive application and consider whether it is fair to apply

the change retroactively. In assessing the fairness of a retroactive application, relevant

considerations include (1) the legislature's motive in enacting the statutory change, (2) the
period of retroactivity, and (3) whether the parties detrimentally relied on the prior version
of the law. Commonwealth Edison Co., 196 Ill. 2d at 44-45, 749 N.E.2d at 975.

In this case, the legislature specifically lengthened the applicable statute of limitations
from 2 years to 10 years and added a discovery provision. That discovery provision was

significantly explained as requiring not only the discovery that the abuse had occurred but

also the discovery that a particular injury had emanated from that abuse. All three

amendments the legislature made to the statute were motivated by an increasing awareness

of the fact that the type of abuse alleged by the plaintiff is by its very nature subject to long-
repressed memories. See Pedigo v. Pedigo, 292 Ill. App. 3d 831, 839, 686 N.E.2d 1180,
1185 (1997). Amendments to the statute that make it easier to file a claim even many years

after the alleged abuse occurs evince a legislative intent to make the procedural limits on

claims of this sort better suit the nature of the claim. That desire to fix the problems inherent
in a previous version of a statute weighs in favor of a retroactive application. See
Commonwealth Edison Co., 196 Ill. 2d at 44, 749 N.E.2d at 975 (approving the legislative

motive to correct previously existing law).
Given the standard personal injury statute of limitations applicable when the alleged
abuse occurred, this plaintiff did not file suit until 13½ years after the limitations period had

13
expired. The period of retroactivity in this case is quite lengthy, a fact that weighs against

a retroactive application. See Commonwealth Edison Co., 196 Ill. 2d at 44-45, 749 N.E.2d
at 975.
More significantly, we find that the defendants cannot claim to have detrimentally
relied on the statute of limitations. The events at issue occurred 19 years before the statute
of limitations was amended. The Diocese of Belleville generally argues that it will be

prejudiced by having to defend the suit after so many years–based upon a "single 15-minute

incident which occurred more than 22 years ago." The Diocese of Belleville contends that
the task is made even more difficult because it was not the employing diocese for Father
Roberts. No argument is made specifically regarding the manner in which the diocese

"detrimentally relied" upon the passage of the limitations period. Father Roberts makes no
argument relative to detrimental reliance.

In all litigation, the passage of time carries a potential for evidentiary problems.

Memories fade. Records might be lost or destroyed. Witnesses might have moved away or

died. While these issues with time affect both plaintiffs and defendants alike, we must

determine whether the defense has relied on this limitations defense in some way. While
there might be cases in which a defendant truly takes actions in reliance upon a limitations
period, in this factual context we are unable to conceive of such reliance. The difficulties

inherent in defending an action like the plaintiff's case do not stem from a retroactive

application of the statute; rather, the difficulties flow from the legislature's judgment that
placing this burden on defendants is an acceptable price to pay for tailoring procedural
limitations to reflect the nature of the type of injury alleged.

In balancing fairness considerations and the reasons for and against the retroactive
application of the statutory change, we conclude that the retroactive application does not
unreasonably infringe on any due process right. See Commonwealth Edison Co., 196 Ill.

14
2d at 47, 749 N.E.2d at 976 (relying on Moore v. Jackson Park Hospital, 95 Ill. 2d 223, 241-

42, 447 N.E.2d 408, 416 (1983) (Ryan, C.J., specially concurring, joined by Underwood and
Moran, JJ.)).
We recognize that two recent cases reach a different result. Galloway v. Diocese of
Springfield in Illinois, 367 Ill. App. 3d 997, 857 N.E.2d 737 (2006); Kuch v. Catholic
Bishop of Chicago, 366 Ill. App. 3d 309, 851 N.E.2d 233 (2006). The court in Kuch failed

to consider the impact of Commonwealth Edison Co. relative to the retroactive application

of statutes. In Galloway, this court did briefly discuss Commonwealth Edison Co. before
concluding that M.E.H. remained valid law. We respectfully disagree with the analysis in
Galloway.

Because of our decision on the retroactivity of the 2003 limitations amendment, we
do not address the plaintiff's alternate argument that this case is not a sexual abuse case, but

a fraud case.

For the foregoing reasons, the judgment of the circuit court is hereby reversed, and

the cause is remanded for further proceedings consistent with this opinion.

Reversed; cause remanded.

STEWART, P.J., concurs.

JUSTICE DONOVAN, dissenting:
I write this dissent because I believe, contrary to the majority opinion, that the

reasoning in Galloway is correct. As we stated in Galloway: "M.E.H. is still good law, and
we are compelled to abide by it. Accordingly, the repeal of the 12-year repose period
governing claims of childhood sexual abuse cannot, consistent with due process, operate to

15
revive the plaintiff's claim." Galloway, 367 Ill. App. 3d at 1000, 857 N.E.2d at 740.

16
 NO. 5-06-0383

IN THE

APPELLATE COURT OF ILLINOIS

FIFTH DISTRICT
___________________________________________________________________________________

JOHN DOE A., ) Appeal from the
) Circuit Court of
Plaintiff-Appellant, ) St. Clair County.
)
v. ) No. 03-L-713
)
DIOCESE OF DALLAS, DIOCESE )
OF BELLEVILLE, ARCHDIOCESE )
OF ST. LOUIS, and FATHER )
KENNETH ROBERTS, ) Honorable
) Lloyd A. Cueto,
Defendants-Appellees. ) Judge, presiding.
___________________________________________________________________________________

Opinion Filed: March 7, 2008
___________________________________________________________________________________

Justices: Honorable Melissa A. Chapman, J.

Honorable Bruce D. Stewart, P.J.,
Concurs
Honorable James K. Donovan, J.,
Dissents
___________________________________________________________________________________
Attorneys Sarah D. Smith, D. Jeffrey Ezra, Ezra & Associates, LLC, 850 Vandalia, Suite 320,
for Collinsville, IL 62234; Jeffrey R. Anderson, Patrick W. Noaker, Michael G. Finnegan,
Appellant Jeff Anderson & Associates, P.A., E-1000 First National Bank Building, 332
Minnesota Street, St. Paul, MN 55101
___________________________________________________________________________________
Attorneys Kevin T. Hoerner, Becker, Paulson, Hoerner & Thompson, P.C., 5111 West Main
for Street, Belleville, IL 62226 (for Father Kenneth Roberts); David Wells, Catherine
Appellees A. Schroeder, Thompson & Coburn, One US Bank Plaza, St. Louis, MO 63101 (for
the Diocese of Belleville); Edward S. Bott, Jr., Edward M. Goldenhersh, David P.
Niemeier, Greensfelder, Hemker & Gale, P.C., 2000 Equitable Building, 10 South
Broadway, St. Louis, MO 63102-1774 (for the Archdiocese of St. Louis)
___________________________________________________________________________________