Shippen v. Parrott

SABERS, Justice

(dissenting).

I dissent. The trial court correctly determined that Parrott committed a continuing tort against Shippen through June, 1987.

“Although this Court has never, in depth, explained the nature of a continuing wrong, other jurisdictions have. A continuing violation is occasioned by continual unlawful acts, not by continual ill effects from an original action.” Brishky v. State, 479 N.W.2d 489, 492 (S.D.1991) (citation omitted). The Court of Appeals for the District of Columbia stated the elements necessary to establish a continuing tort in Whelan v. Abell, 953 F.2d 663 (D.C.Cir.1992). According to the court, a plaintiff must show “(1) a continu[al] and repetitious wrong, (2) with damages flowing from the act as a whole rather than from each individual act, and (3) at least one injurious act within the limitation period.” Id. at 673 (citation omitted). See also Hendrix v. City of Yazoo City, Miss., 911 F.2d 1102 (5th Cir.1990) wherein the court stated that “the continuing violation doctrine embraces ... cases in which the original violation occurred outside the statute of limitations, but is closely related to other violations that are not time-barred. In such cases, recovery may be had for all violations, on the theory that they are part of one, continuing violation.” Id. at 1103.

Only in recent years have the courts applied the concept of a continuing tort to sexual assault and battery and intentional infliction of emotional distress. In Twyman v. Twyman, 790 S.W.2d 819 (Tex.Ct.App.1990), rev’d on other grounds, 855 S.W.2d 619 (1993),1 the Texas Court of Appeals held that a husband’s demands that his wife engage in bondage in order to save their marriage constituted negligent infliction of emotional distress. The court refused to allow recovery for only the incidents of negligent infliction of emotional distress which had occurred within the statute of limitations. Id. at 820-21. Rather, the court allowed recovery for the cumulative effect of a continuous course of conduct which resulted in mental anguish. The Twyman Court noted that in the usual personal injury case, damages attributable to acts occurring outside of the statute of limitations are not recoverable because they involve acts that are “complete in themselves.” But a continuing tort involves wrongful conduct that is repeated until desisted and causes injury over a period of years. In such a case, the cause of action is not complete and does not accrue until the tortious acts have ceased. Id. at 821.

Here, the trial court specifically found that:

The relationship was one long continuous course of conduct since Daniel was eleven years old. There was a two year hiatus during Daniel’s brief marriage to Julie. However, the Defendant did not cease and desist during this time. His methods were modified somewhat. There were no sexual contacts during this time period. Sherman Parrott, however, continued his relationship with Plaintiff by way of continuous contact, including physical contact, telephone communications and correspondence. He continued to exert some lesser degree of financial control. He was vigilant and when they separated, he again made his move by sexually assaulting Plaintiff. This evidence meets all of the criteria of Alberts v. Giebink, 299 N.W.2d 454 (S.D.1980) and therefore constitutes a continuing tort.

The trial court found ample, objective, corroborating evidence of the childhood sexual molestation of Shippen by Parrott. The evidence includes Parrott’s own testimony, as well as his statements to Shippen’s mother and sister, when confronted years later, that the boys knew what they were doing.

The testimony between Shippen and Par-rott conflicts as to the May and June, 1987 advances. While admitting the occurrences, Parrott claims that Shippen consented to the sexual contact. Conversely, Shippen testified that he actively resisted and was suc*89cessful in thwarting Parrott’s sexual advances. The trial court, after considering all of the evidence, along with the demeanor of the witnesses and their motives in testifying as to their respective versions of these two incidents, specifically found that Shippen was not embellishing or exaggerating when testifying concerning the issue of his consent in May and June, 1987 and that Parrott’s testimony concerning these two events was false. The court stated:

In the final analysis, this court has concluded that Parrott’s testimony, for the most part, is false. He has been impeached successfully on adverse examination and his own prior letters impeach, to a certain extent, his present sworn testimony.

Mem. Decision p. 8.

The credibility of witnesses, the weight to be accorded to their testimony and the weight of evidence is for the trial court, Nelson v. Palmquist, 363 N.W.2d 570, 572 (S.D.1985) (citations omitted), and we are not at liberty to change findings where the trial court has resolved conflicts in the evidence.2 Insurance Agents, Inc. v. Zimmerman, 381 N.W.2d 218, 219 (S.D.1986) (citation omitted); Gross v. Conn. Mut. Life Ins. Co., 361 N.W.2d 259, 266 (S.D.1985) (citation omitted). Because the trial court’s findings of fact as to the May and June, 1987 advances are not “clearly erroneous,” we should hold that the trial court correctly determined that Parrott committed the continuing torts of sexual assault and battery and intentional infliction of emotional distress through June, 1987.

In Alberts v. Giebink, 299 N.W.2d 454 (S.D.1980), we stated: “when a tort involves a continuing injury, the cause of action accrues and the statute of limitations commences when the wrong terminates.” Id. at 456 (citations omitted). See also Page v. United States, 729 F.2d 818, 821 (D.C.Cir.1984) (citations omitted). “Moreover, since ‘one should not be allowed to acquire a right to continue the tortious conduct,’ it follows logically that statutes of limitation should not run prior to its cessation.” Id. at 822 (quoting Fletcher v. Union Pac. R.R., 621 F.2d 902, 908 (8th Cir.1980)). In this ease, the final act or occurrence, sufficient to commence the running of the statute of limitations, occurred in June, 1987 when Shippen thwarted Parrott’s attempts. According to SDCL 15-2-15(1),3 Shippen had two years, or until June, 1989, to commence a cause of action against Parrott for sexual assault and battery. According to SDCL 15-2-14(3),4 he had three years, or until June, 1990, to commence a cause of action for intentional infliction of emotional distress. This lawsuit was commenced on January 3, 1989. Therefore, Shippen was within the prescribed time limitation.

The trial court was correct in awarding Shippen damages for the entire period during which the tortious acts were committed. “Since usually no single incident in a continuous chain of tortious activity can fairly or realistically be identified as the cause of significant harm, it seems proper to regard the cumulative effect of the conduct as actionable.” Twyman, 790 S.W.2d at 821 (citation omitted).

The Wisconsin Supreme Court determined that the continuous negligent treatment of a patient constituted a single unit of negligent treatment in Tamminen v. Aetna Casualty and Sur. Co., 109 Wis.2d 536, 327 N.W.2d 55 (1982). Therefore, the statute of limitations for the entire course of conduct, a unitary episode, did not commence to run until the tortious conduct ceased. “Because a cause of *90action is not to be split, the plaintiff is entitled to have the entire cause of action adjudicated if the action is timely brought, measuring that timeliness from the last negligent act in the related continuum[.]” Id. 327 N.W.2d at 65. See also Kolpin v. Pioneer Power & Light Co., 162 Wis.2d 1,469 N.W.2d 595 (1991) which cited with approval Tammi-nen and stated that “in order for a cause of action to accrue, it must be complete. It is complete when the negligent act occurs, or the last act occurs in a continuum of negligent acts, and when the plaintiff has a basis for objectively concluding that the defendant was the cause of the plaintiffs injuries and damages.” Id. 469 N.W.2d at 604 (emphasis in original).5

While we may not have found Parrott’s conduct to be intentional infliction of emotional distress, Judge Grosshans, as fact finder, found that there was contact during the two-year period that was a continuing tort. As Judge Grosshans stated, this conduct “meets all the criteria of Alberts v. Giebink ... and therefore constitutes a continuing tort.” We are bound by this finding unless clearly erroneous.

In applying the clearly erroneous standard we must bear in mind that our function is not to decide factual issues de novo. The question for the appellate court is not whether it would have made the same findings the trial court did, but whether on the entire evidence it is left with a definite and firm conviction that a mistake has been committed.

In re Estate of Hobelsberger, 85 S.D. 282, 181 N.W.2d 455, 459 (1970) (citing Zenith Radio Corp. v. Hazeltine Research Inc., 395 U.S. 100, 89 S.Ct. 1562, 23 L.Ed.2d 129).

Certainly Judge Grosshans was not clearly erroneous in finding this conduct by Parrott to be intentional infliction of emotional distress, even if it was not assault or battery. In reversing this decision, the majority opinion, without saying so, is going against years of sound precedent and stare decisis in this court, including Hobelsberger and Permann v. South Dakota Dept. of Labor, 411 N.W.2d 113 (S.D.1987). I am not, however, “left with a definite and firm conviction that a mistake has been committed,” Hobelsberger, 181 N.W.2d at 459, and therefore, vote to affirm.

Because I vote to affirm the trial court’s decision on the basis of a continuing tort, it is not necessary to discuss the issue of whether the statute of limitations was tolled due to the discovery rule. It is necessary, however, to address the statement made in the majority opinion that “our Legislature has yet to permit such an action[.]”

SDCL 26-10-25 provides:

Time limit on civil action arising out of sexual abuse of child. 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.

And SDCL 26-10-26 provides:

Date of discovery in child sexual abuse action. The victim need not establish which act in a series of continuing sexual abuse or exploitation incidents caused the injury complained of, but may compute the date of discovery from the date of discovery of the last act by the same perpetrator *91which is part of a common course of conduct of sexual abuse or exploitation.

These statutes were enacted in 1991 and do not apply to this action6 as it was started in 1989. They clearly indicate, however, the position of the Legislature and the State of South Dakota. The Legislature has indeed chosen to “permit such an action.” Under the common law theory of a continuing tort, we should also.

AMUNDSON, J., joins this dissent.

. The Texas Supreme Court ruled that because the tort of negligent infliction of emotional distress is no longer recognized in Texas, the case must be reversed and remanded for a new trial to determine whether the facts support intentional infliction of emotional distress. Id.

. SDCL 15-6-52(a) provides in part:

Findings of fact shall not be set aside unless clearly erroneous, and due regard shall be given to the opportunity of the trial court to judge of the credibility of the witnesses.

. SDCL 15-2-15 provides in part:

Except where, in special cases, a different limitation is prescribed by statute, the following civil actions ... can be commenced only within two years after the cause of action shall have accrued:
(1) An action for libel, slander, assault, battery, or false imprisonment!.]

.SDCL 15-2-14 provides in part:

Except where, in special cases, a different limitation is prescribed by statute, the following civil actions .., can be commenced only within three years after the cause of action shall have accrued:
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(3) An action for personal injury.

. In Brenner v. Local 514, United Bhd. of Carpenters and Joiners of America, the Third Circuit, applying the "continuing violation theory” to a union’s duty of fair representation, stated:

In most federal causes of action, when a defendant’s conduct is part of a continuing practice, an action is timely so long as the last act evidencing the continuous practice falls within the limitations period; in such an instance, the court will grant relief for the earlier related acts that would otherwise be time barred.

927 F.2d 1283, 1295 (3rd Cir.1991) (citation omitted). See also Filloramo v. Johnston, Lemon & Co., Inc., 700 F.Supp. 572 (D.D.C.1988) wherein the court stated that under the continuing tort doctrine "a plaintiff can recover for all damages resulting from all of defendant’s wrongful conduct, provided any of it occurred within the statutory period.” Id. at 575 (emphasis added).

. Shippen commenced this action on January 3, 1989, which was within the three year statute of limitations in SDCL 26-10-25 because, as the majority opinion notes, the trial court found that the suppression and repression of Shippen had been sufficiently lifted by March, 1987.