Kimberly Harris, Appellant, v. Dale Franklin Hollingsworth, Respondent.

This slip opinion is subject to revision and may not reflect the final opinion adopted by the Court. Opinion Missouri Court of Appeals Western District Case Style: Kimberly Harris, Appellant, v. Dale Franklin Hollingsworth, Respondent. Case Number: WD63095 Handdown Date: 07/13/2004 Appeal From: Circuit Court of Jackson County, Hon. Jon R. Gray Counsel for Appellant: Stephen G. Mirakian and Cheryl A. Pilate Counsel for Respondent: George E. Kapke Opinion Summary: Kimberly Harris appeals the court's dismissal of her action for civil damages against her father, Dale F. Hollingsworth, in which she alleged that he subjected her to childhood sexual abuse. She contends the court erred in ruling that the claims are barred by the statute of limitations. AFFIRMED. Division holds: The court properly dismissed Harris' childhood sexual abuse claims, brought under section 537.046, on the basis of the expiration of the statute of limitations. Her claims were no longer viable when section 537.046 became effective (August 28, 1990) in that the two-year statute of limitations for battery had already expired and the new statute does not apply retroactively. Citation: Opinion Author: James M. Smart, Jr., Judge Opinion Vote: AFFIRMED. Holliger and Ulrich, JJ., concur. Opinion: This is an appeal of a dismissal of an action for civil damages filed by Kimberly Harris, who alleges she was the victim of childhood sexual abuse. The trial court dismissed plaintiff's action against her father, Dale F. Hollingsworth,

on the grounds that the claims are barred by the statutes of limitations. Ms. Harris appeals. Factual Background On May 1, 2002, Kimberly Harris filed a petition against her father, Dale F. Hollingsworth, the pertinent portions of which alleged the following:

1. Her father sexually abused her from approximately 1971, when she was seven years old, to approximately

1978, when she was fourteen years old.

1. The abuse included fondling, assault, rape, battery, oral sex and unconsented-to sexual intercourse.
2. In addition to the sexual abuse, her father also inflicted other physical and emotional abuse on Ms. Harris.
3. As a result of the abuse, Ms. Harris suffered emotional trauma, including fear, depression and anxiety

"throughout her childhood and adolescence."

1. As an adult Ms. Harris has also suffered the ongoing effects of the abuse.
2. In June, 1999 [when plaintiff was approximately 35 years of age], Ms. Harris was diagnosed with major

depression and post-traumatic stress disorder by a clinical psychologist. As a result of the evaluation and treatment provided her, she learned that her psychological disorders were caused by the sexual and physical abuse inflicted by Hollingsworth during her childhood.

1. She did not remember the facts involved in the incidents any earlier than June 1, 1999.

The defendant moved to dismiss the petition on the grounds that her claims, filed more than 22 years after the last act of the alleged abuse, were barred by the applicable statutes of limitation. The trial court granted the motion to dismiss. Plaintiff appeals. On appeal, plaintiff contends that the court erred in dismissing her cause of action because, even though she filed her action when she was approximately 37 years of age, the petition was filed less than three years after the date plaintiff "discovered or reasonably should have discovered" that her injuries or illness were caused by childhood sexual abuse. Plaintiff focuses on the language of section 537.046.2, adopted by the Missouri legislature in 1990, which adopted a new and specific limitations rule for claims of childhood sexual abuse. Under that statute, the victim has three years after he or she has discovered or reasonably should have discovered that the injuries or illness were caused by the sexual abuse. Relying on that statute, Ms. Harris contends that her cause of action did not accrue until June 1, 1999. Her petition was filed within three years thereafter. Thus, she asserts that it was timely under section 537.046.2. Section 537.046, after defining the terms "childhood sexual abuse" and "injury or illness," provides as follows:

In any civil action for recovery of damages suffered as a result of childhood sexual abuse, the time for commencement of the action shall be within five years of the date that plaintiff attains the age of 18 or within three years of the date the plaintiff discovers or reasonably should have discovered that the injury or illness was caused by child sexual abuse, whichever later occurs. Plaintiff alleges that she did not discover until June 1, 1999, that childhood sexual abuse caused her injuries. The petition does not, on its face, make clear that she "reasonably should have discovered" the causal connection earlier. Thus, if section 537.046 is applicable to this claim, the trial court erred in dismissing the petition. First, however, we must determine whether her claim was arguably still viable when section 537.046 became effective. Section 537.046 does not apply retroactively to resuscitate claims that were already barred at the time it became effective. Doe v. Roman Catholic Diocese of Jefferson City , 862 S.W.2d 338, 342 (Mo. banc. 1993). If the statute does not apply because the action in question was already barred prior to August 28, 1990, then plaintiff receives no benefit from section 537.046 and the cause of action remains barred. Id. The petition shows that plaintiff was born in approximately 1964. Plaintiff would have attained the age of 21 years (the age of majority pursuant to section 516.170) in approximately 1984. At that time, the applicable statutes of limitation were section 516.140 (prescribing the statutes of limitation for battery); section 516.120 (prescribing the statutes of limitation for other personal injury); section 516.100 (specifying the test for determining the accrual of a cause of action); and section 516.170 (providing that the statute of limitations does not begin to run as to a minor until the attainment of the age of 21 years). (FN1) Whether the two-year statute (for battery) or the five-year statute (for other personal injuries) applies depends upon the facts alleged. Sheehan v. Sheehan , 901 S.W.2d 57, 58 (Mo. banc 1995). Generally, acts of sexual abuse involve acts of touching, and hence are battery actions. See id.; K.G. v. R.T.R. , 918 S.W.2d 795, 797 (Mo. banc 1996). In this case, the petition itself and the recitation in plaintiff's brief (FN2) show that, as far as the claims of sexual abuse, we are dealing with battery claims. A petition may not be dismissed due to a limitations bar unless it clearly establishes "'on its face and without exception' that it is barred." Sheehan , 901 S.W.2d at 59. In this case, there is no claim of sexual abuse which is not at its essence an unconsented touching. Accordingly, for purposes of our analysis of the pre-1990 status of these claims for sexual abuse, we must assume the two-year statute was applicable. See K.G. , 918 S.W.2d at 799. If plaintiff's damage from the sexual abuse became "capable of ascertainment" before her 21st birthday, then the limitations period for the sexual abuse would have expired, at the latest, two years from her 21st birthday. See

sections 516.100 and 516.140. The petition alleges that plaintiff has suffered both in her childhood and as an adult from the damage caused by the sexual abuse. The petition states that plaintiff suffered emotional trauma, including fear, depression and anxiety throughout her childhood, adolescence, and adulthood. Under section 516.100, the cause of action accrues not when the wrong is done or the breach of duty occurs, but "when the damage resulting therefrom is sustained and is capable of ascertainment." This is an objective test to be decided as a matter of law by the trial court. Anderson v. Griffin, Dysart, Taylor, Penner & Lay, P.C. , 684 S.W.2d 858, 861 (Mo. App. 1984). The cause accrues when the damage "can be discovered or made known." Carr v. Anding , 793 S.W.2d 148, 150 (Mo. App. 1990). The right to sue arises when the fact of damage is "capable of ascertainment," even though not actually discovered or ascertained. See Vandenheuvel v. Sowell , 886 S.W.2d 100, 102 (Mo. App. 1994). Generally, the sexual abuse itself is "capable of ascertainment" immediately, and the damage therefrom is "capable of ascertainment" as soon as the emotional turmoil appears. H.R.B. v. Rigali , 18 S.W.3d 440, 443 (Mo. App. 2000). Therefore, under the accrual test of section 516.100, a claim of childhood sexual abuse would be barred two years after plaintiff attained the age of 21. As we have noted, the test for accrual as to childhood sexual abuse claims was altered by the legislature in section 537.046. The statute, which became effective August 28, 1990, specifies that actions should be brought within five years after the plaintiff attains the age of 18 or within three years after the date plaintiff "discovers or reasonably should have discovered that the injury or illness was caused by child sexual abuse, whichever later occurs." Section 537.046.2. The legislature opted to use this alternative accrual test for childhood sexual abuse claims instead of the "capable of ascertainment" test. The caveat we must keep in mind in our analysis, however, is that the discovery test adopted in the statute applies only if the cause of action was still viable as of the effective date of the statute in 1990. Doe, 862 S.W.2d at 340-42. In this case, while the petition does not specify certain dates, we can discern the following facts:

1. If Plaintiff was seven years old in 1971 as alleged in the petition, Plaintiff was approximately 26 years of age at

the time of the effective date of the statute, August 28, 1990.

1. Plaintiff suffered damage from the childhood sexual abuse throughout her childhood, adolescence, and

adulthood.

1. At some point during her childhood, Plaintiff unconsciously repressed all memories of the abuse itself,

although she continued to suffer damage from the abuse in the form of depression, anxiety and emotional distress.

1. Although subjectively she did not connect the sexual abuse to the emotional damage, and hence did not

discover or ascertain the damage, the damage was objectively "capable of ascertainment" before her 21st birthday.

1. Because, under section 516.170, the limitations period for plaintiff's claim did not begin to run until she

attained the age of 21 years (in approximately 1985), her claims were not barred until 1987 (to the extent that her claims were battery claims). Because Ms. Harris' claims for childhood sexual abuse were clearly barred prior to the effective date of section 537.046, the passage of that section did not avail her of additional time in which to bring her action. The trial court properly determined in its review of the petition that the petition clearly establishes "on its face and without exception" that the action for childhood sexual abuse is barred. See Sheehan, 901 S.W.2d at 59. The petition also contains a reference to "other physical and emotional abuse" inflicted on Ms. Harris. Because this is an attempt to plead "other personal injury," any such claims of abuse, to the extent that they were sufficiently pleaded, were subject to the five-year limitations period of section 516.120. Because these were not claims of "childhood sexual abuse" within the meaning of section 537.046, the limitations period could not be extended by section 537.046. Therefore, these claims are also currently barred. Accordingly, we affirm the judgment dismissing the petition. Footnotes: FN1. Section 516.371, which provides that the limitation on actions for incest shall be ten years, does not enter into our analysis because it was not enacted until 1989, by which time the claims were already barred. FN2. Plaintiff-Appellant, in describing the abuse in the petition, states: "The abuse included fondling, assault, rape, battery, oral sex and unconsented-to sexual intercourse." Separate Opinion: None This slip opinion is subject to revision and may not reflect the final opinion adopted by the Court.