Cassidy v. Smith

Opinion by

Judge SMITH.

Plaintiffs, Lynn K. Cassidy and Susan K. Ball, appeal the summary judgment, based on a C.R.C.P. 12(b) motion, dismissing their claims for outrageous conduct, negligence, and negligent infliction of emotional distress and imposing sanctions on plaintiffs’ counsel to pay the costs and attorney fees incurred by defendant. We reverse in part and affirm in part.

The basis of plaintiffs’ complaint was that defendant, a trusted family advisor and their “surrogate father,” sexually abused them during their childhood. This abuse allegedly consisted of defendant engaging in sexual intercourse with both plaintiffs beginning when Cassidy was seventeen and Ball was fifteen and continuing for some time thereafter. Cassidy and Ball were, at the time of instituting this action in 1988, thirty-three and thirty years of age respectively. Both had attended college and Cassidy eventually married before the action was begun.

According to plaintiffs’ affidavits, filed in opposition to the motion to dismiss filed by defendant, defendant told them both to keep their sexual relationship a secret because if the relationship was revealed, defendant could be harmed and plaintiffs’ mother would suffer greatly. The affidavits also indicate that defendant informed plaintiffs that there was “nothing wrong” with this relationship but that other people would not understand. Plaintiffs stated that they did not divulge the relationship to anyone until they were confronted by their mother in 1985.

The affidavits further indicate that the defendant’s last sexual contact with Cassi-dy was in 1985 and with Ball in 1983 or 1984.

The trial court granted defendant’s motion to dismiss solely on the basis that the claims were barred by the two-year statute of limitations set out in § 13-80-102, C.R.S. (1987 Repl.Vol. 6A.) It concluded, based on the pleadings and the affidavits submitted to it, that plaintiffs knew or should have known of the existence of any injury they sustained as a result of defendant’s wrongful or tortious acts either before or at the time of their attainment of majority. The trial court further concluded that plaintiffs were thus required to bring their claims against defendant within two years of obtaining majority. It assessed attorney fees against plaintiffs’ attorneys for having brought a frivolous lawsuit.

I.

Plaintiffs first argue that the trial court erred in granting defendant’s motion to dismiss based on its determination that the statute of limitations expired two years after the plaintiffs reached their majority. They assert that the court should have applied a six-year statute of limitations to their claims. We agree the trial court erred in applying § 13-80-102, C.R.S. (1987 Repl.Vol. 6A), rather than the six-year statute of limitations that was applicable to tort actions prior to July 1, 1986.

*557For many years prior to July 1, 1986, the statute of limitations applicable to negligence and outrageous conduct actions provided that such actions were barred if not brought within six years of the time that they accrued. See § 13-80-110, C.R.S. Effective July 1, 1986, that limitation period was reduced to two years. See § 13-80-102, C.R.S. (1987 Repl.Vol. 6A). On appeal, both parties agree that all of the plaintiffs’ claims arose prior to July 1, 1986, and, therefore, the period permitted by statute for plaintiffs’ claims to be asserted was six years. See Colo.Sess.Laws 1986, ch. 114 at 706.

Plaintiffs’ affidavits state that defendant had sexual contact with each of them within six years of the filing of the complaint and that such contacts represented outrageous conduct and caused them mental distress. As to such incidents, no statute of limitations defense may be asserted.

Even though plaintiffs’ complaint did not make specific reference to the episodes occurring within this time frame, we determine that defendant was sufficiently on notice as to the ongoing nature of these claims over a prolonged period of time, and therefore, plaintiffs should be permitted to amend their original complaint to identify those specific sexual incidents with defendant which occurred within six years prior to the filing of the lawsuit. See Zertuche v. Montgomery Ward & Co., 706 P.2d 424 (Colo.App.1985).

II.

As to their remaining claims, plaintiffs rely solely on the discovery rule; they contend that no statute of limitations commenced to run until they had discovered or reasonably should have discovered all the elements of their causes of action. They argue that this did not occur until after 1985 when their mother confronted them concerning their sexual relations with defendant and urged that they commence therapy. They contend their affidavits and those of their therapists create a material question of fact as to when they discovered their injuries and the cause thereof and, consequently, that the trial court erred in granting defendant’s motion to dismiss. We disagree.

Plaintiffs essentially argue that they were unaware of the wrongful nature of the acts, the resulting damage from the acts, and the causal relationship between the two. However, the record supports the trial court’s conclusion that plaintiffs were on adequate notice of the essential elements of the tort at the time they reached their majority. See Mastro v. Brodie, 682 P.2d 1162 (Colo.1984).

Here, the sexual intercourse between plaintiffs and defendant began when Ball was fifteen and Cassidy was seventeen. Thus, under any analysis, the statute of limitations was tolled for each until she reached the age of eighteen. See § 13-81-103, C.R.S. (1987 Repl.Vol. 6A). The question thus becomes whether the plaintiffs remained unaware of “both the injury and its cause,” see § 13-80-108, C.R.S. (1986 Repl.Vol. 6A), after their majority such that no cause of action accrued until less than six years before their action was filed.

Plaintiffs’ affidavits reveal that, from the time the incidents began, there was a negative impact upon their emotional well-being which indicated psychological problems and guilt were being caused by this relationship. Cassidy admitted in her affidavit that, while the relationship with defendant was ongoing, she experienced pain and despair, alienation from her peers, parents, and sisters, and led a divided and compartmentalized life. The affidavit of Cassidy’s psychotherapist indicates that, beginning at the same time as the relationship with defendant, Cassidy became bewildered, ashamed, and angry. Ball’s affidavit indicates that at the time of these incidents she felt weird and confused. Both admit that, during the period when these acts occurred, they were told that the activity was improper, that it was not considered appropriate conduct by others, and that it was illegal. Also, plaintiffs are college-educated and, after reaching their majority, spent a significant period of time away from defendant.

*558Under these circumstances and based on these undisputed facts and admissions contained in plaintiffs’ own affidavits, we conclude, as a matter of law, that plaintiffs were aware of the wrongful nature of defendant’s acts and that they had sufficient knowledge concerning the existence of resulting psychological harm that the statute of limitations began to run when they achieved their majority. See Nitka v. Bell, 29 Colo.App. 504, 487 P.2d 379 (1971); and E.W. v. D.C.H., 231 Mont. 481, 754 P.2d 817 (1988)

Since plaintiffs’ counsel have presented substantial legal arguments in support of their position that the statute of limitations had not expired for acts which occurred more than six years prior to the filing of the complaint and since it appears certain acts did occur within six years prior to the statute of limitations, we reject the trial court’s holding that this was a frivolous action and, accordingly, reverse the award of attorney fees.

The judgment of dismissal is affirmed as to those claims premised on acts occurring more than six years before the complaint was filed. The judgment is reversed as to those claims based on acts occurring within that period, and the cause is remanded for further proceedings on those claims. The trial court’s award of attorney fees is reversed.

MARQUEZ, J., concurs. DUBOFSKY, J., dissents.