Edwin Dean Vest v. Sterling Bossard, Hans Chamberlain, Ira Schoppmann, James Nelson and John Does One to One Hundred

600

May NLRB, v. Department Stores Co. 376, 383-84, 203, 208,

U.S. 66 S.Ct. 90 L.Ed. (1945) Champa and NLRB v. Linen Co., (10th

Service F.2d Cir.

Order enforced. Walsh, Utah,

John Lake City, Salt for plaintiff-appellant. Snow, Allan L. Larson of Christensen & VEST, Plaintiff-Appellant,

Edwin Dean Martineau, Utah, Lake City, Salt for all defendants-appellees. Sterling BOSSARD, Richards, Brandt, Nelson L. Hayes of Chamberlain, Mil Hans Nelson, Utah, ler & Schoppmann, City, Salt Lake

Ira James Nelson and Hundred, defendants-appellees Chamberlain John Does One One De- (P. fendants-Appellees. Schoppmann Keith Nelson and Donald Purser, Richards, Brandt, J. Miller & Nel No. 81-2148. son, Utah, City, Salt Lake for defendants appellees Schoppmann, Chamberlain & United of Appeals, States Court Wilkinson, Gen., David L. Atty. and Frank Tenth Circuit. lyn Matheson, Gen., B. Atty. Asst. Salt Feb. Utah, City, Lake for defendants-appellees

Sterling Nelson, Bossard and James on the briefs). DOYLE, LOGAN,

Before McKAY and Judges. Circuit DOYLE, WILLIAM E. Judge. Circuit problem is, know, here as we one in which the tolling non-tolling of the stat- ute of limitations is involved. Plaintiff was falsely charged a hei- offense, nous sodomy. course, knew that he an injury. had suffered He did not know that there had been a conspir- and, acy unaware of the identity conspirators. Meanwhile the statute of limitations had run as of the time plaintiff. admitted the truth to boy But what conspiracy also included cover-up be called a in order to uti- lize the statute of limitations as a defense. presented The Utah cases which are here all recognize party question that where the identity perpetra- is unaware of the incident, tall, tors or tolled was two of the the statute is six feet inches blond and evidentiary and an for hearing is in order age. fourteen Plaintiffs did years purpose facts. ascertaining the true Bobbie,as the at that identify victim time. after the disappearance Sometime of the applicable The statute is one the Utah police boy the detectives contacted the 78-12-1 which provides § “civil actions plaintiffs part follow-up. can as In re- only period commenced within the prescribed chapter, plaintiffs’ in this after the cause of he sponse inquiries told them accrued, action shall have except where mysterious that the accident victim had not special pre- cases a different limitation is yet been identified. went Plaintiffs by 78-12-25(2) pro- scribed statute.” morgue after and identified acci- vides “an for action relief not otherwise as their dent victim ward Bobbie. On Octo- provided by law must be commenced years ber almost three after the within four The years.” particular offense accident, but only fatal three months after involving by Vest is not covered expressly ward, of the of their body the identification any statute but the four year statute brought plaintiffs wrongful death ac- regarded provision. as a catch-all tion driver defendant of the One of the cases deals with conceal- vehicle alleging accident intoxication ment of the of the action accrual cause of statute and/or wilful misconduct. The by Myers This is v. Mc- defendant. interposed. plaintiffs limitations was The Donald, 635 P.2d The issue in that case 84. that the maintained cause of should wrong- was whether the statute tolled in a until discovery not accrue of the death inas- ful year death action in which the two they by report much as had been misled applied. of limitations In that case Joey; the decedent’s name was plaintiffs unaware facts were thus they discouraged making were and circumstances of the death decedent’s any inquiry. statutory period. until after the this As in Supreme The outlined the Court case, the com- district dismissed the policy of the statute as follows: plaint by as barred limita- statute of area, this However, governing policy tions. The as Supreme the Utah judgment, calling by reversed that attention declared United States the particular plaintiffs, hus- Court, facts. “are statutes of limitations wife, guardians band and were of fourteen designed promote justice by prevent- year Menzies, old Bobbie the wife’s brother. surprises revival through the meeting Bobbie failed to return home after that have been allowed to slumber claims with some Plaintiffs reported friends. lost, until has been memories evidence disappearance police. Because disap- have faded and witnesses police was a minor the listed department In that policy, furtherance of peared.” missing him as a than as a runaway rather general rule is that a cause of action person. The status re- latter would have upon the of the last happening accrues sulted in an check of local automatic necessary complete event the cause of morgue. made several con- rule, ignorance Under that mere during ensuing year po- tacts with the of action does of the existence of a cause lice in order to where- boy’s determine prevent of the statute of abouts. read They newspaper also articles limitations. P.2d at [citation 26th, concerning a November 1976 automo- [footnotes omitted] omitted] bile Lake County accident in in which Salt went say The court on to that: car large collided with a tree that resulted exceptions are a There number of in the mysterious passenger death of a rule. enumerated general some identified by the driver vehicle law, Legislature areas of our being Joey. This victim described as statute so tall, discovery adopted hair eight five feet inches with brown however, begin Bobbie, does early and in his twenties. investigative initiate efforts to deter- even discovery of facts form- to run until the which action. mine the cause of the death of of the cause of ing the basis circumstances, In such knowledge. had no circumstances, where the statute In other said, “the law would be the court normally apply, having created a rem- untenable proof of concealment Court has held barring then them plaintiffs for and precludes edy the defendant misleading by or any they it before relying exercising on the statute the defendant from Id. to do so.” practical opportunity Id. of limitations. [footnotes omitted] reasoning plain- this was the the Vest case the Similarly The court said that question in the case and further the factual theory be that tiffs’ second there would adopt- said that courts of some states in his favor due to should be resolved discovery by judicial ed this so-called whether he had inability to determine circumstances where exceptional action in an action or bring practical opportunity rule would be general the application the in view of to vindicate his unjust. The court concluded irrational or happened hide what had effort to express point way the toward precedents “Those partici- run so that the until the statute had appropriate the deci- what we deem to be and to pants inequitably could utilize it sion in this case.” Id. advantage. their regarding

The case was remanded and case of Myers The court cites the Vincent court said: remand the Utah, 583 P.2d 105 County, Lake v. Salt their plaintiffs prove ruling If are unable to its (Utah 1978) support trial, diligence at allegations of due facts cannot conceal material defendants by still be barred the statute action would of limita- find shelter behind a statute then plaintiffs prevail can of limitations unless knew that his plaintiff tions. In Vincent theory alternate by proof of their water damaged by underground garage was misleading by defendant. concealment or what the water’s source but did not know improper here is that it was All we hold drainage county The had installed was. plaintiffs’ for the trial court to dismiss property. the pipe plaintiff before owned on the basis of the pleadings action on pipe for that There was no easement record Id., at 87. statute of limitations. it when he and did not discover county employees Both and built his house. very McDonaldcase is simi- Myers was there and superior pipe who knew lar but not as extreme as case bar. joints were had reason to know that charged are with en- Here defendants pipe county that no unsealed told tering conspiracy into a to hide the commis- damage. That causing could be wrong against plaintiff. sion of the Supreme the Utah aggravated a much more concealment caused gives That rise to ruling that the trial court’s problem. Court to reverse plaintiff’s the statute of limitations barred Supreme Myers In the case Utah law of that very readily Court declared the the statute is tolled being state as is Rice v. Granite Myers Also cited in alleged plaintiffs, guardians, where the as District, 2d 456 P.2d 159 23 Utah School did not know of their ward’s plain- led adjusters insurance There erroneously due defendants’ re- death need not file a claim that she tiff believe name to the authori- porting their ward’s liability admitted and defendant ties. to be settled. damages needed the trial reversed Supreme Court would be plaintiffs In the event that the plaintiff’s judgment summary court’s prove diligence, policy able to due the statute by was barred by was said the court to limita- against stale claims in- cannot It held that defendants tions. outweighed unique circumstances by and delay filing claims duce hardship plain- inasmuch as plaintiffs’ of limitations. the statute then assert damages tiffs could not file an action case, oral During arguments in the Vest it typically health care field court, by way analogy, considered case a great that there often is disparity malpractice medical actions. It must be of those who provide kept statute, in mind that is a there distinct health care services those who re- U.C.A.1953, 78-14-4 § which Utah ceive respect expect- the services with courts in determining refer when a mal- unexpected ed given side effects of practice suit barred. procedure, nature, degree, as well of expected extent after effects. case, McMaster, a recent Howe v. While recipient may be aware of a (Utah P.2d 1980), be, dysfunction, may or a there disability upheld ruling trial court’s understanding untutored 78-14-4 barred action. The layman, average apparent connection court ruled that the statute of limitations provided between the treatment was tolled where to the untutored under- physician and injury suffered. Even standing layman there appar- was no is, if passed there it may be off as an ent connection between treatment received unavoidable side effect or a side effect and injuries that illegally treatment that with pass will time. 601 P.2d at 147. Howe, caused. But in the statute ran from (a time treatment injection) dental court also made a statement which is plaintiff, quite was who a nurse familiar relevant here: with the effects of improperly administered Furthermore, adopt to a construction injections, capable was of knowing about a encourages 78-14-4 that person a training prevented connection. Her her experiences injury, dysfunction who an or claiming from that could she not know that ailment, and has knowledge her injuries mouth were caused the den- cause, a against to file lawsuit a health injection tal until it was too late to file a provider care to prevent statute of limi- case. But had she not been skilled and tations from not consistent knowledgeable in this area the court would with unarguably sound proposition that held the statute was tolled. that strongly unfounded claims should be discouraged. One of the chief purposes The statute was to have held tolled in the Malpractice Utah Health Act Care case (Utah of Foil v. Ballinger, P.2d 144 was prevent filing unjustified to plaintiff, Foil, There the had no against providers, lawsuits health care special training and consequently the court costs, with all the attendant economic and held that policy protect- the social favoring entail, otherwise, (em- that such suits patients outweighed untutored the stat- phasis supplied) ute goal of limitation’s of preventing un- founded, late impose medical claims that The court say: went costs on health providers. care The Foil It adopt imprudent also court also ruled that the statute’s provision might rule that some care tempt health that begins it run soon as he has providers patients to fail advise injured reason to know that he has been mistakes that have been made even and means the plaintiff that must that he know make efforts to suppress injured was and “that the injury was hope such in the that run- mistakes by negligent caused action.” 601 P.2d at ning of the statute of limitations would 148, citing Rees, Christiansen 20 Utah 2d make a valid cause of action nonactiona- 436 P.2d 435 The court said: ble. provides A rule that that the limita- malpractice

Because of the nature of tions shall from the run date actions, law, prior and based on we the act or omission tends to foster that begins hold that the statute to run when result. law should foster a fulfill- injured person an prop- knows should know ment of so that duty disclose that he a legal injury. has suffered er can be and We remedial measures taken base holding grounds. on several damage ameliorated. that opinion the statement page 1 of his problem malpractice true that the

It is This reads as deposition. condemns in his in Utah. The court Vest made special one expresses of the statute follows: inflicted people who have policy reason time, 'suspicions why I had to this Up permitted to cover injury should not be an charges upon me Cedar they placed lawsuit. so as to avoid a up injury running argument my was City. One That, which we find is a situation the loss concerning Mayor Weckon it present In the case in the case at bar. specialist I am a Canyon power. of Glen was argued cannot be sources, energy ecology area of in the who identity persons aware of constantly stating was and I him. Must his injury upon perpetrated should not be mayor at the time that he suffers action accrue between Cal Pac the conflict was in with circumstances, where under those suspi- I had Power. Canyon and the Glen carefully plotted a very there has been be the reason. cions that been and there has injury inflicted planned Burns was his close Judge told that True, he knew conspiracy up? to cover it friend, very also told that a and I was he had no injured had been that he Judge Burns stated friend of close a cause of know that he had reason to stop could ever Supreme Court only the the defendants. Unlike me. nailing them experience he had no nurse in Howe suggestion that the infor- my supports injury to him to connect his would cause early stages had at the mation that Vest actions and he did not have defendants’ inadequate to raise more this incident was injury. For him to file a source of that regard- that he mentions suspicion than the prove up as the lawsuit that he could being Burns Mayor Judge and folly suggested would have been trial court falls short of Mayor. friend of encourage certainly and the law should justify the run- being enough evidence as the court in Foil activity, that kind of of the Limitations Statute. ning noted. impor- attention to the all Finally, we call suggested by expedients In conclusion the I, Constitution, Art. tant words of the Utah court, namely trial the defendant 11: Sec. go and then boy file a lawsuit every and open, “All courts shall be put must to one fishing expedition, on a be in his injury done to him person, for an and Foil particularly side. The Utah cases remedy by due person ... shall complete there be a full and demand that law, which shall be adminis- course of hearing just equitable and and deci- factual ...” tered without denial which the Surely sion. this is the view It would take in this case. Utah court summary case in a dispose To of the burdens, plus would hold that the of Mr. Vest’s plain manner is a violation jus- produced perpetrators, the fraud of the suggests that rights. Judge McKay evi- the statute. The tification summary again grant once may trial suggests record which present dence in the McKay respect, Judge all judgment. With knowledge conspiracy had that Vest of fact. Whether pure question speaks Un- legally inadequate. thin and is at best the facts cannot concealed the defendants conspiracy explain- revealed the boy til the pro- summary judgment determined in be he had been forced to maintain ing that ceeding. had of limitations secrecy until the cause is is reversed and judgment To knowledge. not have full run Vest did proceedings. further remanded for suspi- suspicions sure he had some possibilities of defend- cions or existence LOGAN, Judge, concurring: Circuit enough having factual ant legal analysis disagree with I do not have the statute run in favor My prob- this case. opinions on the other quoted Judge Logan defendants. lems My got said, are with the factual If application. lawyer me aside and statute of limitations is tolled ‘They let you will not out of this town case it is because of the doc- concealment unless you plead guilty something.’ trine, applicable which is when defendants said, plead And ‘If you Hans will conceal the existence of a cause of action illegal guilty to touch —’ I think was from the I plaintiff. agree that the statute give the term he you used will ‘ — on the 1983 claim U.S.C. § six suspended months’ and sentence did not commence to run until Vest knew of you go your way. can will be You the involvement of at least one state actor. charged flipping Buoy with Perry But Vest’s statements and admissions from your the back office.’ hand in his his deposition convince me he knew Now, facing my me in wasn’t reasonably should have known in- office, flipped so I with the shoulder Burns, Judge volvement of perhaps hand, back my charged and I was positions, sheriff and others in official with illegal judge touch. And the in the alleged him. conspiracy against that, asked did said yes. me if I and I deposition Vest stated that he sus- said, ‘Now, judge you have done pected Judge the involvement of Burns: your that on free will?’ time, Up suspicions “A. I said, It transcript ‘Yes.’ is in the they placed why charges upon me in the trial. City. my Cedar One was right. ‘All Six months county argument with Weckon Mayor con- jail. Suspended upon the fact that— cerning the Canyon loss of Glen six months in the but ar- county jail, power. I am specialist in the area range your with Hans Chamberlain ecology sources, and I energy lawyer that can be you incarcerated constantly stating Hospital Veterans for treatment.’ mayor should not be in the said, And he over leaned and he ‘Dr. he was in with the conflict between very man,’ ill you indicating are Canyon Cal Pac and the Pow- Glen I was insane. suspicions very

er. I might had that that be the reason. I was told that Now, gave Minneapo- Mr. Cline me a Judge friend, Burns was close test, lis that Multiphasic and he said I and I was also a very told that close ‘criminally presume insane.’ And I of Judge friend stated Burns that this was connected here.” only the Court could ever Id. at 11-12. stop them from me.” nailing If Judge made the statements de- Bums Deposition Edwin Dean Vest at 17. above, contends, they put scribed as Vest A few minutes earlier deposition in his judge perhaps Vest on notice that the and testimony Vest described the events in conspir- the sheriff were of the part alleged Judge prosecu- Burns’ chambers when acy to drive him of the out town. tor drop charges. had to the sodomy Other events described Vest are not as “Q. happened What at trial itself? with regard clear involvement A. We went into the chambers and official, but when recitals state added to the Hans Chamberlain said he that had above, the events should have indicated to Schoppman sent for Perry Sheriff or other judge involvement he Buoy and had eluded him. Sheriff state actors. Schoppman or his representative had No, nothing “A. I about it. After know office, finally brought him to his and he came me that out to car and told very regretably damage that had out of whole town tried to run me man, been to this very regretably done on, town then the Perry Buoy told and so head him he had lied. And judge Boys didn’t even an Home —I went for a record- eye. tape bat He said, says, you story?’ ‘What else can we him er. I tell me get on?’ ‘Will No, recorder, I sta- A. said we shouted across the tape And I went for and I on the Perry tions. time saw back, Every why, the head of the got I street, police right there was a car be- not to Boys Home had received orders if I hind And I was told that him. let to me. Donny talk I would caught Perry were near even Q. suspected But that you must have jail. put be back into the sheriff would be one of those who that? Q. you Who told that, you was concerned about Perry son tried my A. himself not? said — Perry, put Perry, police talk to and Now, Hansen, A. No. I was careful on that.” kibosh anyone not to I was in suspect Id. 26-27, not false put holding The trial not base its court did charges anyone Having else. on or should upon finding that Vest knew me, charges placed false I wasn’t participation. known of state actors’ have anyone. about to accuse All it would Perry Rather it he should have sued stated take say— would be someone to him. it is the Buoy deposed and Because Q. friend, Billy your you’re But talk- the trial to make responsibility of ing he giving you with him and colleagues findings, agree my factual I with you gotten information bad Judge case should remanded. deal, didn’t ask him who you even evidentiary Doyle would remand an these people were? hearing. McKay agrees with the Judge A. You make it sound so innocent. I remand, expresses but view said, did it?’ And he said that ‘Who grant still be district court able together all in on it were summary judgment after reconsideration. would not tell me who did what. I did above, I Because the evidence recited Donny know who did what. him- Judge McKay the district agree self—I not know Jim Nelson had did after grant summary judgment court could charges told on. Perry put more time, I reconsideration. At the same do that Donny did not know Reusch object judge taking to the trial additional said, Perry going kicked ‘You are prob- alleged cover-up evidence on the too far.’ I did know that. knowl- suggestions further on the Q. attorneys you your Did mention to quoted edge contained evidence you after had this shortly above. conversation with where he Donny made these accusations? McKAY, opinion Judge, separate Circuit re- of concurring judgment in reversal A. What accusations? mand: Q. That the whole town was summary

you appeals out? Edwin from a Vest rights brought judgment in a civil action day A. Of course. I told them that the to 42 1983.1 The sole pursuant U.S.C. § charges dropped. that the were the trial appeal in is whether issue this Q. Well, is what you suspected at judgment correctly summary held on that time— govern- of that the Utah statute limitations suspected. A. That is what It is was not tolled. ing Mr. Vest’s claim applied correct that the trial court clear rights, deprivation any privileges, im- provides part or in of 1. Section 1983 as follows: by munities secured Constitution who, any Every person under of stat- color laws, party injured in an to the shall be liable ute, ordinance, custom, usage, regulation, law, equity, proper in or other suit Territory State or of or the District proceeding for redress. Columbia, subject- subjects, or causes to be (Supp. IV ed, any 42 U.S.C. 1983 or other citizen of the United States person jurisdiction within the thereof

007 Buoy Utah to 1983 to Mr. statute limitations and discover the identities of equally claim. It is clear that conspirators. unless tolled law, under .principles by established Utah Finally, 1978, in removed, the surveillance the suit was untimely filed. See Board Buoy Mr. told Mr. Vest defendants Regents Tomanio, 478,100 v. 446 U.S. S.Ct. had charges. induced false Mr. Vest 1790, 64 L.Ed.2d 440 alleges that this the first was time he knew actors state were involved in the inci- I. He dent. filed this action in September Mr. Vest’s claim substantive is as follows: The applicable statute of limitations 1973, In early pro- Mr. college Vest years.2 Thus, four if the statute limi- fessor in Cedar City, Utah. The named tations was tolled until his action was juvenile defendants —a judge, prosecutor, filed. timely a county attorney, probation and a officer- wanted to force Mr. Vest to leave the com- II. this, munity. accomplish To the defendants boys tolling asked three probation testify statute limitations is to falsely equitable founded on principles that Mr. Vest cannot had committed forci- against ble sodomy readily bright them. The formulated defendants line rules. Application threatened to boys principles requires send the to a cor- state understanding general rectional school if substantial they refused. One of the boys, body case, of law Perry Buoy, agreed applied, to af- collaborate ter the other two State of Utah. In a recent refused and were series thor- sent ough opinions, charges state correctional school. After explained precedents has sodomy forcible were filed Mr. but also Vest, given some Buoy Mr. indication of the principles wanted to retract his com- plaint, applied directions to be defendants future cases. threatened See, prosecute Myers McDonald, e.g., him for P.2d 84 perjury if he did. Mr. (Utah 1981); eventually pleaded Ballinger, Foil v. 601 P.2d guilty to a lesser (Utah 1979); charge. Vincent v. County, Salt Lake (Utah 1978). 583 P.2d 105 Mr. Vest claims that the statute of limi- “ tations was tolled for civil rights imposes claim statute of limitations ‘to because the actively promote justice surprises defendants concealed by preventing their participation in procuring perjury. through revival claims that have He asserts that after pleaded guilty a been allowed to slumber until evidence has lost, lesser charge, Buoy defendants told Mr. faded, been memories have and wit- ” prosecute him for perjury nesses have v. Mc- disappeared.’ Myers if he told Mr. Vest Donald, (Utah 1981). who suborned his P.2d false complaint. Mr. un- They placed Buoy begins generally der police continuous surveillance for five run when the last for a necessary event years keep Mr. approaching Vest from cause of action occurs. Id. There are three avail, him. First, to no oth- exceptions general befriended to this rule. com- er youths get in an talk attempt post- them to mencement of the 1983, brought sup- analogous 2. In suits under state the § law most state action was for fraud plies governs finding applicable its the statute limitations and and in that the tolling long period years so as it is consistent with is federal four under Utah Ann. Code Tomanio, note, however, Regents 78-12-25(2) (1953). law. Board 446 U.S. I that § 478, 1790, (1980). against 440 100 S.Ct. 64 L.Ed.2d the limitations for the suit the applicable governing years. state the statute is one sheriff be two Code closely 78-12-28(1) (1953). the cause of action most analo- Vest state Ann. Since Mr. § gous Spiegel presence 1983 first § to the claim. v. School claims to have been aware of the 1978, County, (10th Laramie 600 F.2d actors in this Dist. No. 264 state December and filed Cir.1979). 78-12-28(1) does I believe that the district court action in October argument rejecting appeal. correct Mr. Vest’s affect the outcome of this Myers found circum- See, “exceptional while by legislation. poned in some cases not know plaintiff for a who did 78-14-4 stances” e.g., Utah Code Ann. § been-expect- Second, reasonably is tolled could not have the statute of limitations suggests dili- injury, or with due to know of his the case plaintiff until the knew ed tolling cause “exceptional have known of his circumstances” gence should or “exceptional apply circumstances when always action does principle application action where the unaware injury causes of is aware but plaintiff or un- be irrational general the would the ration- comports its cause. This Third, at 86. just.” Myers, 635 P.2d “exceptional prin- circumstances” ale limitations would “where the statute of countervailing balances two ciple, which apply, proof of concealment normally ... of limita- implicated by statutes policies misleading by precludes or the defendant oth- and the against tions: one stale claims on the statute relying the defendant from court. excluding against plaintiffs er Vincent, See, e.g., limitations.” Id. extreme, potential plaintiff if á At one P.2d at 105. does not claim action, his cause of the statute knows of limita- statute of any legislation tolls the him to sue provides incentive for in this case. His suit is therefore tions the time, avoiding thus a reasonable within excep- unless one of the other two barred allowing the of a stale claim while litigation applies. tions ex- access to At the other plaintiff court. must treme, one two costs at least of these A. preclude incurred when circumstances recog- the Myers, In his cause of knowledge of plaintiff’s circumstances or “exceptional nized that in recognized Myers, action. In the court action,” statute of limitations causes plaintiff is potential is the case when a plaintiff knew or with due is tolled until injury. that he has suffered unaware known of his cause of diligence Thus, the two forced choose between 84. Myers, P.2d costs, discovery rule applied the court hardship and avoided Myers gives explicit guidance cost of a stale claim. hearing incurred the “exceptional are circumstances or there excep- trigger causes of action” that polar lies the case Between these cases Myers, youth tion. In an unidentified died plaintiff is aware of his potential which a media incor- in an auto accident. The news Here, its the stat- not of cause. injury but years rectly described him. Almost three for the provides incentive ute of limitations later, victim plaintiffs identified the investigate injury to deter- plaintiff to brought wrongful their ward and death he can sue. mine whether whom car. driver of the costs— of both can result avoidance held that concealment of even absent hardship to of stale claims and litigation defendant, youth’s identity by of limita- by statutes plaintiffs implicated — tolled year statute of limitations was if two injury if tions. Of diligence. used due or his investigate he is unlikely such that decision, its court noted that explaining cause, investigation unlikely to reveal “plaintiffs not file an action for could injury is irrele- then his ef- damages investigative or even initiate Myers, that under vant. Thus conclude of a death of forts to determine the cause “exceptional circumstances” had no P.2d knowledge.” which when the principle apply does Thus, plaintiff’s hardship out- harmed unless has been is aware the cost claim. weighed of a stale heor “exceptional are circumstances” there action” “exceptional cause of Myers explicitly pointed The court in out has an investigate the him not is not where the fact cause a case of would “[t]his that would hinder of his death was known the cause of the fatal cause but furthers interpretation Thus, investigation. accident was not.” at 87 n. 8. Id. abovfc, the policy in of Myers elucidated minimiz- it is clear Mr. Vest knew in 1973 litigation both the of stale claims and that he had of a cause action under Utah the exclusion of deserving plaintiffs Buoy law prosecu- from Mr. malicious however, He alleges, court.3 tion. that since he did not know that state participated actors had analysis Applying present case, prosecution, malicious he did not I note that alleged Mr. has Vest that he deprived know he had been his of knew that he been harmed when the fourteenth amendment rights, and that he charges false against him, were filed he had a federal of cause action under section did not know cause the of his harm or 1983, until December 1978. it legal whether constituted a injury under However, federal law. The defendants make two counterargu- he did know that First, somebody they had caused Mr. ments. claim the Buoy bring the concealment charges. apply false a doctrine should not because con- believe that reasonable plaintiff investigate identity such a cealed their from Mr. case find who maliciously out who had knew had cause of action in prosecuted Furthermore, him. The trial court based its decision besides the defendants’ on this argument: active of concealment their identities treat- below,

ed see post pp. 609-611, Mr. Vest knew Buoy’s alleged in 1973 of Vest alleged no “exceptional circum- falsehoods, easily and could have com- stances” that investigation would hinder his obviously menced an actionable claim of charges. the cause of false I there- against Buoy, and then utilized the com- fore conclude the “exceptional circum- pulsary judicial processes of dis- [sic] stances” doctrine does not toll statute covery to uncover the details of the trans- of limitations for his cause of under actions leading prosecution.... his section 1983. plaintiff could have then listed [T]he

conspirators he suspected as “John B. as easily Does” as he has done in his herein, complaint substituting their true argues that the statute of limi- identities developed as information tations was remaining tolled under through the discovery process. doctrine, Myers exception, the concealment applies Record, which (footnote omitted). defendant conceals vol. Indeed, existence of a cause of action from the is- courts that considered the plaintiff. Commission, McKee v. Industrial sue have held that concealment the iden- Utah 206 P.2d 715 He tity perpetrators injury, of a known defendants, hiding contends in opposed as to concealment of the cause of identities, their action, concealed the existence of toll does not his federal period. Chap- cause of action. As discussed E.g., limitations Estate of above, plaintiff 3. As stated statutes tions even if the that he has knows bright limitations does not lend itself to line been hurt but aware the cause his is not duly injury. Ballinger, (Utah rules. crux of the issue is whether a Foil v. P.2d 144 diligent likely is great disparity find out that he can This is because of the expires. sue before statute of providers recipi- between the There cases which a is respect ents of health care with to side effects but, injury exceptional aware due and after effects of medical treatment. Id. circumstances, discovering precluded present opinion’s analysis, terms the existence of his cause of unsuccessful, In such a investigation will be case, Myers requires the rationale of society incur one the two must example be tolled. costs, One recipi- “[wjhile of limitations actively when a defendant conceals a may disability may ent be aware ... there concealing injury. cause of action without be, understanding to the untutored of the aver- post pp. See 609-611. Another such area is layman, age apparent connection between malpractice suits, medical which Code provided by physician the treatment (1953), interpreted by Ann. 78-14-4 Id. suffered.” at 147. Court, tolls the statute of limita- 610 Sanders, (D.C.App. an not

pelle “injury,” v. 442 157 ment of A.2d concealment con- probably action, they I believe that Utah that even if While cause of action, if adopt Chappelle will the rule followed in of cealed Mr. Vest’s federal cause inap- arises, argument the issue I think the that the injury, not his so they did conceal perform posite. defendants’ identities The This was tolled.4 sense, dual in this In one a function case. contradicting in to argument, addition potential are in they parties mere a known 715, McKee, is in 206 P.2d explicit language action; another, iden- state in their cause of Lake with Vincent v. Salt inconsistent jurisdictional fact tity as actors is state (Utah 1978). In Vin- 583 105 County, P.2d 1983 necessary for existence a. cent, leaking knew that water plaintiffs Thus, alleges cause Mr. wall The garage made their crack. concealing their identities actively them the water defendant assured actors, con- actively the defendants as state court its held pipe. not from necessary cealed a for the existence of fact period began to run true, of action. If this is his federal cause the defend- plaintiffs discovered simultaneously hid their identities damage “it is pipe ant’s caused the potential in a known state defendants plaintiffs to com- incongruous require to prosecution malicious action does render when the mence an action ... cause less con- the federal cause of action plaintiffs” to and the damage is unknown cealed. them. P.2d at misled 583 defendants have Moreover, this case of the application to Vincent, were aware 107. incon- Chappelle rule followed in would be their not of their cause injury, sistent the existence section 1983 as with action, applied the conceal- independent remedy. an The rule’s effect I am uncon- ment doctrine.5 therefore file require plaintiff would be by argument vinced the defendants’ bringing state John Doe action before requires the concealment doctrine conceal- ac- 1983 actors suit whenever state than ment of an rather of a cause injury tively conceal their involvement action. This conclusion consistent wrongdoing. would be inconsistent interpretation “exceptional cir- my very with the rule that “the well-settled Al- Myers. cumstances” doctrine in independence 1983” a re- precludes of § injury cause though knowledge of his quirement that a 1983 plaintiff exhaust underlying cir- investigate judicial Regents state remedies. Board of cumstances, concealment of 478, 491, the defendant’s Tomanio, 446 100 U.S. S.Ct. action, successful, 1790,1798, 440 Mon- if will render (1980); 64 L.Ed.2d See the cause unsuccessful, roe v. Pape, investigation 365 U.S. 81 S.Ct. L.Ed.2d perverse It would be either a stale and the courts must hear allow state defendants circumvent deny to court. claim or access independence by ag- of section further incurring one of these necessity Since transgression their initial gravating mis- is attributable to the defendant’s costs Thus, the followed concealment. behavior, forces the concealment doctrine Chappelle preclude application does not by precluding it the defendant to bear the concealment doctrine to this case. the statute of limitations. invocation of Thus, at 86. Myers, 635 P.2d also See suggest defendants applies even when exception conceal- concealment doctrine requires concealment superficially distinguishable Formally, 4. are al- Vincent is defendants leged knew because Mr. Vest at least to have concealed Vest’s the instant case —a Buoy. rely deprivation on this that he could sue Mr. To of his fourteenth amendment remedy, rights just first reassert defendants’ distinction his § —and rejected through argument, above. which I their concealment of their identities as state actors. is aware of if the de- actively fendants have MARKET, concealed his cause HEINOLD HOG INC., Plaintiff, v. law, Under Utah concealment the. applies, doctrine period the limitations be- McCoy; Denny J. Dennis McCOY a/k/a

gins to run only when the McCoy McCoy, Janet E. a/k/a Janet et actual knowledge of the facts consti- al., Defendants, tute Vincent, his cause of action. 583 P.2d 105; Myers, 635 P.2d 84.6 I therefore con- George HERRMANN, Plaintiff, clude that if the actively defendants con- cealed presence of all state actors from thus concealing the existence LIBERTY NATIONAL BANK & TRUST action, his federal cause of the statute of COMPANY, al., Defendants, et limitations was tolled until Mr. Vest had Larry D. Martin and E. John Grand- actual knowledge of the involvement of at bouche, Witnesses-Appellants.

least one state actor. Of once the presence of known, one state actor was No. 83-1090. Chappelle followed in applica- would be Appeals, United States ble to the other defendants. Tenth Circuit. conclusion, In I “excep- believe that Feb. 1983.

tional circumstances” tolling principle does However, not apply to this case. if the

defendants actively partici- concealed their

pation in Mr. injury, Vest’s the concealment applies,

doctrine and the

began when Mr. actual involvement least one state

actor. I make judgment on whether the facts,

defendants concealed and would not

preclude the possibility that the trial court

may it proper grant summary find judg-

ment limitations issue after reconsid- light

eration in judgment. of this court’s Myers, plaintiffs alleged diligence, 6. if the not use de- did due their wrongful timely fendant had concealed their could death ac- suit was if show concealment They diligence tion. claimed to have due 635 P.2d at used the defendant. discover facts. court held that even

Case Details

Case Name: Edwin Dean Vest v. Sterling Bossard, Hans Chamberlain, Ira Schoppmann, James Nelson and John Does One to One Hundred

Court Name: Court of Appeals for the Tenth Circuit

Date Published: Feb 18, 1983

Citation: 700 F.2d 600

Docket Number: 81-2148

Court Abbreviation: 10th Cir.