Paul Dymit, Appellant, vs. Independent School District #717, Respondent, James Mark Simon, Respondent.

This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480 A. 08, subd. 3 (2002).

 

STATE OF MINNESOTA

IN COURT OF APPEALS

A04-471

 

Paul Dymit,
Appellant,
 
vs.
 
Independent School District #717,
Respondent,
 
James Mark Simon,
Respondent.

 

Filed December 14, 2004

Affirmed; motion to strike granted

Minge, Judge

 

Scott County District Court

File No. C-03-02663

 

Jeffrey R. Anderson, Patrick W. Noaker, Robin R. LeDonne, Jeff Anderson & Associates, P.A., E-1000 First National Bank Building, 332 Minnesota Street, St. Paul, MN 55101 (for appellant)

 

Kay Nord Hunt, Ehrich L. Koch, Lommen, Nelson, Cole & Stageberg, P.A., 2000 IDS Center, 80 South Eighth Street, Minneapolis, MN 55402 (for respondent ISD #717)

 

Lawrence M. Rocheford, Melanie J. Leth, Jardine, Logan & O'Brien, P.L.L.P., 8519 Eagle Point Boulevard, Suite 100, Lake Elmo, MN 55042-8624 (for respondent Simon)

 

            Considered and decided by Minge, Presiding Judge; Willis, Judge; and Huspeni, Judge.*

U N P U B L I S H E D  O P I N I O N

 

MINGE, Judge

            Paul Dymit, the victim of sexual abuse, challenges a summary judgment determination that his claims are time barred.  The limitation on actions in Minn. Stat. § 541.073 (2002), requires victims of sexual abuse to bring their claims within six years of the abuse unless they are under a legal disability or are incapacitated.  Because more than six years have passed since appellant turned 18, because appellant did not establish that he was disabled or incapacitated, and because there was no fraudulent concealment that tolled the statute of limitations, we affirm.

FACTS

 

Respondent James Simon, a teacher at Jordan High School, sexually abused appellant Paul Dymit, a student, from 1986 until 1992.  The first instance of sexual abuse occurred when Dymit was in eighth grade.  The final sexual encounter occurred in the summer of 1992, between Dymit's first and second year of college.

Dymit's life as a young adult was difficult.  He dropped out of college because of gambling and financial problems.  In 2000, his wife left him (taking their daughter), in part because of his gambling and drinking problems.  Ultimately they divorced.  In July of 2001, his daughter died in her sleep.  Dymit started counseling to deal with the devastation he felt over the loss of his daughter.  He tried to change his lifestyle, started a home improvement company, and remarried.  However, he again began to gamble and improperly used client funds.  In August 2002, Dymit was about to commit suicide and admitted himself to the hospital.  Dymit never spoke to anyone about the abuse by Simon until this hospitalization.  His admitting physician described Dymit as a "pleasant, cooperative, tearful and reliable historian."  During his hospital stay, Dymit was diagnosed with, among other things, possible post-traumatic stress disorder, depression, and alcohol abuse.

After Dymit disclosed his claims of sexual abuse by Simon, Dymit learned that prior to 2002, respondent Independent School District #717 (the Jordan School District), had received two complaints that Simon had engaged in improper sexual behavior.  The first incident allegedly occurred in 1989.  The principal of Jordan High School spoke to Simon about this allegation.  The police investigated and after Simon passed a lie detector test, the matter was dropped.  The second incident occurred in 1993, two years after Dymit graduated.  Simon was formally reprimanded by the school district for engaging in inappropriate behavior with a student and a letter was placed in his personnel file listing the allegations. 

Dymit asserted that while he was in high school he was uncomfortable having contact with Simon and with their sexual encounters, and that he knew the sexual activity was wrong.  However, he claims he did not realize that the encounters constituted abuse and that he was not aware he had suffered any injury as a result of the activity.

In February 2003, at the age of 30, Dymit initiated this lawsuit against Simon for injuries from sexual abuse and against respondent, the Jordan School District, under the theories of vicarious liability, negligence, negligent supervision and negligent retention.  Simon and the Jordan School District brought motions for summary judgment claiming that Dymit's actions were barred by Minn. Stat. § 541.073 (2002), the six-year statute of limitations applying to sexual abuse claims.  The district court ordered summary judgment against Dymit after holding that all of his claims were time barred by section 541.073.  Dymit appeals.

D E C I S I O N

 

            On appeal Dymit claims that (1) he did not know his injuries were caused by sexual abuse until 2002, when he underwent psychological evaluation; (2) the claims against the school are tolled because the school fraudulently concealed information about Simon; and (3) the negligence claims should be considered under the general time limitation statute, Minn. Stat. § 541.05 (2002), and the time period under that statute should not have begun to run until 2002 when Dymit learned that there had been an earlier police investigation.

            On appeal from summary judgment, this court must ask (1) whether there are any genuine issues of material fact; and (2) whether the district court erred in its application of the law.  State by Cooper v. French, 460 N.W.2d 2, 4 (Minn. 1990).  The district court properly grants a motion for summary judgment when "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue of material fact and that either party is entitled to a judgment as a matter of law."  Fabio v. Bellomo, 504 N.W.2d 758, 761 (Minn. 1993).  On appeal, this court "must view the evidence in the light most favorable to the party against whom judgment was granted."  Id.  Nonetheless, the non-moving party may not rest on mere averments; a genuine issue for trial must be established by substantial evidence.  DLH, Inc. v. Russ, 566 N.W.2d 60, 69-71 (Minn. 1997).  No genuine issue of material fact exists "[w]here the record taken as a whole could not lead a rational trier of fact to find for the nonmoving party."  Id. at 69 (quoting Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S. Ct. 1348, 1356 (1986)).

I.

            The first issue is whether Dymit's cause of action is barred by the Minnesota statute on delayed discovery of sexual abuse.  That law provides as follows:

Subd. 2.  Limitations period.  (a) An action for damages based on personal injury caused by sexual abuse must be commenced within six years of the time the plaintiff knew or had reason to know that the injury was caused by the sexual abuse.

. . . .

Subd. 3.  Applicability. This section applies to an action for damages commenced against a person who caused the plaintiff's personal injury either by (1) committing sexual abuse against the plaintiff, or (2) negligently permitting sexual abuse against the plaintiff to occur.

 

Minn. Stat. § 541.073 (2002).  This statutory language has been interpreted and applied in several reported cases.  In Blackowiak v. Kemp, the supreme court noted that injury caused by sexual abuse is entitled to a different limitation period from other types of personal injury because of the "difficulties attendant on the victim's often repressed recollections."  546 N.W.2d 1, 3 (Minn. 1996).  Many victims of sexual abuse, especially young children, are "psychologically and emotionally unable to recognize that they have been sexually abused."  W.J.L. v. Bugge, 573 N.W.2d 677, 680 (Minn. 1998).  In interpreting Minn. Stat. § 541.073, the court concluded that as a matter of law, "one is injured if one is sexually abused."  Blackowiak, 546 N.W.2d at 3.  The ultimate question posed under the delayed discovery statute is "the time at which the complainant knew or should have known that he/she was sexually abused."  Id.  Under Blackowiak, knowledge of the abuse is determined by using an objective, reasonable person standard. Id. 

To determine when the time limit on Dymit's claims started to run, the court needs to determine when a reasonable person in Dymit's position would have realized that he had been sexually abused.  Answering that same question in Bugge, the court determined that the statute of limitations begins to run once a victim has been abused "unless there is some legal disability, such as the victim's age, or mental disability . . . which would make a reasonable person incapable of recognizing or understanding that he or she had been sexually abused."  Bugge, 573 N.W.2d at 681.  In terms of age, the six-year period of limitation does not begin to run until the victim reaches the age of majority.  D.M.S. v. Barber, 645 N.W.2d 383, 389 (Minn. 2002) (clarifying issues regarding the start of the six-year period raised in both Blackowiak and Bugge).  In Bugge, the victim alleged that she had been sexually abused between the ages of 16 and 19 years old.  573 N.W.2d at 679.  She waited 14 years to bring suit.  Id. at 682.  On appeal, the supreme court declined to toll the statute of limitations and reinstated summary judgment against the victim after concluding that she was unable to show that a reasonable person in her circumstances would not have known that she had been sexually abused.  Bugge, 573 N.W.2d at 682.  The abuse victim in Bugge did not claim that she suffered from a mental disability that caused her to repress memories or trauma that otherwise rendered her incapable of "coming forward."  Id.  Instead, the victim claimed that she was confused by the sexual abuse at the time it occurred.  Id.  The Bugge court stated, "[m]erely not thinking about the abuse is not enough to delay the running of the statute of limitations."  Id.

Dymit's case is similar to the situation in Bugge.  Dymit was abused from 1986 until 1992 when he was 19 years old.  Dymit's statements make it clear that he was aware of the incidents of sexual abuse the entire time, even if he did not label them as sexual abuse.  His statements indicate that he knew that Simon's conduct toward him was wrong and that he was uncomfortable with their sexual activities.  He also realized that Simon would be in trouble if anyone found out that he was having sexual relations with a minor.  Dymit did not want to return to visit Jordan after he stopped having sexual relations with Simon because he felt uncomfortable there.  Until 2002, Dymit never mentioned the abuse to anyone.  Although he has had problems with gambling and alcohol addiction, there is no evidence that he had suffered from a mental problem that caused Dymit to repress his memories of abuse, thereby tolling the statute of limitations under Bugge. 

A related question is whether Dymit was suffering from the type of emotional trauma that prevented him from bringing suit.  He was diagnosed with depression, alcohol abuse and possible post-traumatic disorder when he was admitted to the hospital in 2002.  However, Dymit was able to function in society.  He managed his own affairs, maintained marital relationships for several years and held jobs.  After his daughter died, he sought counseling to cope with the grief.  Although he checked himself into a hospital in 2002, and was described as tearful, he was also described as pleasant, cooperative, and a reliable historian.  With this record, the district court properly concluded that Dymit was not suffering from the type of trauma that prevented him from either understanding or protecting his legal rights.  See Maloney v. Dakota County Receiving Ctr., Inc., 560 N.W.2d 402, 406 (Minn. App. 1997) (holding that alcohol abuse and mental commitment are not conclusive of incapacity).

A reasonable person in Dymit's position, who was able to recollect the details of the abuse and who knew that what had happened was wrong, knew or had reason to know that he had been abused.  In the same way that the victim in Bugge could not toll the running of the time limit because of "confusion" about the relationship, Dymit cannot toll the statute.  Under D.M.S. and Blackowiak, the six-year limitation period began running in 1991 after Dymit reached the age of majority.  Therefore, the limitation period ran by 1998.  Dymit's suit, brought in February of 2003, was time barred under Minn. Stat.        § 541.073.

Dymit also argues that he was not aware that the problems he had with leading a productive life, specifically his alcohol and gambling problems, were injuries caused by his sexual abuse until 2002.  Dymit therefore argues that under the language of Minn. Stat. § 541.073, subd 2, the limitation period should be tolled until he actually realized the connection between these injuries and his abuse or could reasonably be expected to have made that connection.  This argument would be more cogent if this were a case of first impression.  However, the Minnesota Supreme Court has held that "as a matter of law one is ‘injured' if one is sexually abused."  Blackowiak, 546 N.W.2d. at 3.  In Blackowiak, the court considered the argument by the victim that he did not realize until he was in his thirties that "his problems with drugs and alcohol, crime and with personal relationships were all the result of [the accused's] abuse."  Id. at 2.  In applying Minn. Stat. § 541.073, subd. 2, the court held that the question of when the victim realizes the nature and extent of the harm resulting from the abuse is not relevant to the ultimate question of when the victim knows that he or she was sexually abused.  Id. at 3.  Minn. Stat. § 541.073, subd. 2 uses the language "know or had reason to know."  This is not a subjective test focused on the particular victim's actual knowledge, but an objective test.  Based on the statute as applied by the Minnesota Supreme Court and because Dymit knew the sexual conduct was improper more than six years prior to initiating this suit, his claim is barred by Minn. Stat. § 541.073.

II.

            Appellant next urges that the Jordan School District fraudulently concealed from him Simon's character as a sexual predator, that this concealment contributed to the risk of abuse that he faced, and that the concealment tolled the running of the statute of limitations.  As a part of Dymit's fraudulent concealment argument, he claims that the school district had a fiduciary duty to him to disclose Simon's misconduct.  The issue is whether there was evidence of fraudulent concealment and if so whether it tolled the running of the statute of limitations.

The rule for applying fraudulent concealment to a statute of limitations is set out in Schmuking v. Mayo, 183 Minn. 37, 38, 235 N.W. 633, 633 (1931):

[W]hen a party against whom a cause of action exists in favor of another, by fraudulent concealment prevents such other from obtaining knowledge thereof, the statute of limitations will commence to run only from the time the cause of action is discovered or might have been discovered by the exercise of diligence.

 

Fraudulent concealment must be an intentional and affirmative concealment of a cause of action.  Williamson v. Prasciunas, 661 N.W.2d. 645, 650 (Minn. App. 2003).  The plaintiff must also show that the concealment could not have been discovered with reasonable diligence.  Id.

            Dymit has not produced evidence of any affirmative act or statement by which either Simon or the school district fraudulently concealed any information.  The failure to publicize the information that Simon had been investigated and cleared of charges by the police in 1989 does not represent active or fraudulent concealment.  Because Dymit had all the information he needed to realize he had been abused, the cause of action was not concealed. 

Dymit also argues that the school district owed Dymit a fiduciary duty.  Assuming there is a fiduciary duty,[1] a fiduciary can be liable for fraudulent misrepresentation by silence, even though there is no evidence of fraudulent statements or intentional concealment.  Murphy v. Country House, Inc., 307 Minn. 344, 350, 240 N.W.2d 507, 512 (1976); Cohen v. Appert, 463 N.W.2d 787, 790 (Minn. App. 1990), review denied (Minn. Jan. 24, 1991).  Even if a fiduciary duty is established, the limitation period is only tolled until the necessary facts are or could have been discovered by the beneficiary through reasonable diligence.  Cohen, 463 N.W.2d at 790-91.

            Dymit was aware of the conduct constituting abuse at all times.  Dymit had all of the information necessary to bring an action for sexual abuse or negligence on the part of the school district.  The only additional fact that the school possessed at the time of Dymit's graduation (when, presumably, any possible fiduciary duty would end) was that Simon had been investigated for and cleared of an improper sexual conduct allegation.  This information is insignificant when compared to what Dymit knew about his own situation.  If this court determined that a fiduciary duty existed, Dymit's knowledge of the key facts would still run the limitations period.  See Cohen, 463 N.W.2d at 790-91. 

In addition, there is no evidence of an affirmative act of concealment or the type of misrepresentation through silence necessary to establish fraudulent concealment or breach of a fiduciary duty.  For these reasons, we conclude the limitations period under Minn. Stat. § 541.073 was not tolled. 

III.

            The third issue is whether the general statute of limitations with respect to negligence applies to appellant's allegations of negligence against the school district.  That general statute provides that negligence claims are subject to a six-year limitation.  Minn. Stat. § 541.05, subd. 1(5) (2002).  Minn. Stat. § 541.073, subd. 3 covers actions against a person who negligently permitted sexual abuse against the plaintiff to occur.  In D.M.S., the court acknowledged that generally personal injury actions based on negligence are considered under Minn. Stat. § 541.05, but then considered the plaintiff's negligent hiring, supervision and retention claims arising out of sexual abuse under Minn. Stat. § 541.073.  645 N.W.2d at 386-90.  Likewise, in ABC v. Archdiocese of St. Paul & Minneapolis, the court examined negligence claims against the archdiocese for the sexual abuse by a priest under Minn. Stat. § 541.073.  513 N.W.2d 482, 485 (Minn. App. 1994).  Since both the plain meaning of the statute and the caselaw indicate that sexual abuse actions should be brought under Minn. Stat. § 541.073, appellant's claim against the school district is governed by this section. 

VI.

Respondent Jordan School District moves to strike certain materials from Dymit's appendix and the portions of Dymit's brief which refer to them because they were not included in the district court record.  These materials are primarily related to the testimony of Simon's other victims.  Dymit argues that they are part of the record because they were referenced in an interrogatory included in the trial record.  They were not attached to the interrogatory or filed in the district court and are thus not part of the record on appeal.  The school district's motion to strike is granted.

            Affirmed; motion to strike granted.

* Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10.

[1] We note that whether a public school has a fiduciary duty to a middle or high school student is contested by the parties and not settled law.