*1 lowing investigative delays necessarily do Williams, process.”); due v.
offend State (1995);
Ariz. 904 P.2d State 397-98, Broughton, P.2d
v. Hall, (1988); 486-87 State v. 592-93, 401-02 make
The Defendant has failed to the nec-
essary showing that would warrant dismissal.
First, wholly allege he has failed or dem- intentionally delayed
onstrate the State advantage. far gain preju- a tactical As concerned,
dice is the Defendant claims of the who was with him
one two women be-
when he was arrested is available out
cause she moved to an unknown address asserted that this
of state. Defense counsel
witness, available, if would testified driving.
the Defendant was not Defense conceded, however, also that the sec-
counsel testimony
ond woman would offer same may have trial. While the Defendant prejudice, some such does not rise to
shown prejudice actual and substantial Dunlap,
mandates
dismissal. See State
(App.1996).
Ac-
cordingly, we reverse the dismissal order the trial for
remand this matter proceedings.
further
WEISBERG, VOSS, J., P.J., and concur. Treon, Striek, Aguirre by Lucia & Richard Phoenix, DePaoli, Treon T. T. and Michael Mya Mary NOLDE, Johnson, Ella Plaintiffs-Appellants. for Andersen, Kathleen Plaintiffs- Jones, by Melvin & Hochuli A. Skelton Appellants, Phoenix, Dennis, for Eileen J. McDonald and Defendant-Appellee Frankie. FRANKIE; High Union Bruce Glendale Garrey and Garrey D. & Curran Reid District, Defendants- School Woner, Scottsdale, Teilborg, Shawna M. Appellees. Jardine, by Bradley R. Parks Sanders & No. 1 95-0475. CA-CV Herkes, A. Phoe- N. Kristin Bryson Rick Arizona, Appeals of Court of nix, Defendant-Appellee Union for Glendale 1, Department Division C. High District. 1,May OPINION 21, 1998.* Review Granted Jan.
KLEINSCHMIDT, Judge. facts, Plain- The taken as favor the Defendant, tiffs, Bruce are these. *Moeller, J., participate in the tion this matter. did not determina- *2 Frankie, begin they a to run until was teacher and track coach at limitations did Washington High School. Each of the Plain- the causal connection between discovered Washington High tiffs a student injuries and the Defendant’s conduct. during the 1970s or 1980s. The De- upon professional Based the literature that fendant seduced each of the Plaintiffs and Gerstenberger, in we discussed Ulibarri engaged activity in extensive sexual with (App.1993), the long period each over a of time. Most of this argue adopt that we a Plaintiffs also should activity occurred while the Plaintiffs were involving special rule for cases the minors. by position in abuse of a child an adult of completely
The the trust. Defendant dominated psychologically. By of Plaintiffs means this appeal, After the Plaintiffs filed this our domination, together harm with threats to supreme ap- court decided the consolidated them, the Plaintiffs and those close to peal Sargeant, in Florez v. persuaded Defendant intimidated case, plaintiff, P.2d 250 In that keeping Plaintiffs into silent about his activi- Gomez, had been molested when he was ties. years by priest. about twelve old He sub- years following In the the cessation of and, sequently led a chaotic life when he was Defendant, relationship each thirty, priest sued the and the diocese that experienced problems, Plaintiff emotional employed priest. response had to the large part due in to their invocation of the statute of limitations de- sought counseling the Defendant. Each fense, Gomez asserted that the statute was psychologist one kind or another. A clinical tolled because he was of unsound mind within psychiatrist who are familiar with the 12-502, meaning of A.R.S. section that he expressed opinion Plaintiffs have that duress, memory had been under that his had Defendant, psychological blocking, fear of the repressed, been and that he did not connect shame, self-blame, guilt, internalized confu- injuries the sexual abuse to his until within sion, denial, repression and disassociation years two the action. together from the abuse have worked to cre- inability part ate an on the Plaintiff each. The ap- other in the consolidated understand, level, on a conscious the con- peal Moonshadow, in Melissa had nection between the Defendant’s abuse and sexually been abused her father from the they the mental and emotional damage age of six until she was seventeen. She suffered. These factors impos- have made it posttraumatic suffered from stress disorder sible for the any practical Plaintiffs to take prevented confronting which her from her grievances. action redress their alleged father. She also that her father counseling prob- As the result of for their threatened her with or death if she lems, each of the Plaintiffs came to realize told of the abuse. Some four after wrongfulness of what the Defendant had brought last incident Moonshadow responsible done and how it was for their suit. result, problems. gradually As a were able to free themselves from the Defendant’s The court concluded that in each domination. Two of the Plaintiffs filed suit case, the limitations barred the against the Defendant and the School Dis- rejected every argument action. The court joined trict and the Plaintiff third concerning psychological pressure, repressed the action 1994. The Defendants filed disorder, memory, posttraumatic stress du- summary judgment motions for based on the ress, equity fraud and that the Plaintiffs in two-year limitations, statute of and these the case now before us have raised. The granted. appealed. The Plaintiffs supreme court held that the touchstone of whether an unsound mind will toll the statute acknowledge
The Plaintiffs
manage
is whether the
is able to
brought
many years
suit
after the occurrence
affairs,
ordinary daily
give
something
of the events which
or her
rise
their claims.
however,
They argue,
the statute of
all of the Plaintiffs in the case
us have
before
However,
area.
doing
this
indisputably
governs what courts
been able to do. Florez
supreme court’s
bound
this court is
required to follow it.
and we are
Sargeant,
opinions Florez
allege
also
Plaintiffs
Therefore we are
P.2d 250
refusing
complete
erred
to allow them
than that dictated
a result other
free
reach
discovery
summary judg-
granting
before
*3
majority opin-
in the
by Florez and reached
limita-
ment on the basis of the statute of
ion here.
light
encompassing
na-
tions.
of the all
However,
issues,
hope
in
that either the su
the
we
respect
ture of Florez with
to the
give more
legislature
or the
will
preme court
in the trial
cannot find an abuse of discretion
cases than to normal
consideration to these
ruling.
court’s
the
of limitations
tort eases filed after
attorney’s
requested
The Defendants
run,
Taking
facts
separately.
I
the
has
write
allowing
provisions
under the
for such
fees
female
plaintiffs,
the
the three
as
favor
appeal appeal
when an
is frivolous. The
their lives
plaintiffs in this case have had
filed,
not frivolous
not frivolous when
and is
disrupted
scarred
the
permanently
request
for fees is denied.
now.
public high
alleged
trusted
actions of their
granting
trial court
the
The order
must take the facts
school track coach. We
summary judgment
for
Defendants’ motions
plaintiffs, against whom
they favor the
is affirmed.
granted. Thompson
summary judgment was
Co.,
Prod.
171 Ariz.
v. Better-Bilt Aluminum
THOMPSON, P.J., concurs.
203,
(1992);
550, 558,
211
Hill-
P.2d
832
Trust,
Partnership
Family
v. Chilson
Shafer
GRANT,
concurring.
Judge, specially
(1990).
469, 472,
810,
Ariz.
813
165
types
present
of cases
a conundrum
These
any questions
independently
will review
We
country.
judiciary throughout
for the
relating to the statute of
of law
These eases have arisen
recent
Phoenix,
Ariz.
City
v.
180
defense. Owens
contemplated by
previously
and were not
1100,
402, 405,
(App.1994). In
P.2d
1103
884
by legislatures.
courts or
Ulibarri
Ger
addition, we must determine de novo wheth
M.D.,
154,
151,
P.2d
stenberger,
178 Ariz.
871
any genuine issues of material
er there are
(1993).
698,
Although
now
we
know
trial court erred
fact and whether the
for a
type
problem
societal
has existed
Satrustegui,
applying the law. Gonzalez v.
time, only recently
very long
have victims
97,
(App.
P.2d
Stephanie
damages in court.
sought civil
See
1993). Summary judgment
proper when
Abuse,
Orr,
Up
The Arizona Re
Facing
party opposing
presented
evidence
public, March
at H1.
value, given the
probative
little
motion has so
required
proof,
reasonable
facing
this:
burden
The conundrum
the courts is
.that
jurors
agree
opposing
could not
summary judgments granted
If we affirm
Reeves,
party’s conclusions. Orme Sch.
of the stat-
favor of defendants on the basis
Finally,
limitations,
Nolde went to the of Moon molestation, School, High previously that an who had been the abuse and child states principal Washington High prosecuted where action must be commenced and School alleged years Coach Frankie worked when the sex- “within two after the cause of action accrues, § ual principal abuse occurred. Nolde told the 12- and not afterward.” A.R.S. what Frankie plaintiffs’ minority Coach had done to her. The toDue status torts, principal speak advised Nolde to alleged the assis- at the time of most of the superintendent tant High two-year period normally of Glendale Union would District, Shortly begin eighteenth birthdays. which she did. to run on their thereafter, 12-502(A) (1984).1 by § Nolde was attacked twice men All A.R.S. three years past she believes had been sent Coach Frankie tiffs waited more than two Terrified, temporarily to silence her. eighteenth birthdays she to file these actions. moved out of the United States. After she delay Plaintiffs’ is not unusual States, returned to the United she saw Coach examining.the typical when victim of sexual verbally Frankie in a restaurant and he past abuse. it has been in the While threatened her. very group five to ten distinct Finally, plaintiffs complaints the three filed of claimants has come to the forefront tort alleging negligence and intentional acts aris- litigation, to come most of these victims wait ing from the sexual molestation Coach abuse, long to court survivors of as adult during they Frankie the time were minors. occurring in after the acts of abuse addition, plaintiffs alleged that Glen- Tolling childhood have ended. See the Stat High negligently dale Union School District Brought by ute Limitations in Actions supervised negligently retained Coach Abuse, Adult Survivors Childhood Sexual Frankie, negligently and also entrusted stu- due, delay 33 Ariz.L.Rev. 427 Frankie, dents such as to Coach part, understanding at least to the lack of thereby jeopardizing safety. the students’ remaining surrounding abuse and the veil of filed, complaints secrecy and their
After the that shrouds victims suffer ing. for for filed Petition Order Show Cause
1. A.R.S. section 12-502 was amended in issue. the claims in but former statute controls Moreover, case, many author Historically, reports as in this children’s of sexual prosecute, especially fantasy abuse were ities will often refuse to dismissed as or the fault child,” report years to young girls of a “seductive when the victims wait several while who high criminal complained because of the repudiated of incest would be must proof in which the state threshold theory under the Freudian of feminine fanta- beyond prove the crime a reasonable doubt. sy. Id. at 428. It was not the 1960’s Here, example, the evidence the trial 1970’s, leaders, for rights when civil femi- suggested that while Nolde John nists, and child advocates came to be heard reported appeared to have son both began political power, to have early to authorities in 1992 within abuse widespread awareness of child abuse as a (see seven-year of limitations criminal statute phenomenon began emerge. social Id. at 13-107(B)(1) (1985)), the au section A.R.S. 428-29. prosecute because thorities refused Many studies shown victims prove could were not assured childhood sexual abuse suffer from both Thus, “beyond cases a reasonable doubt.” long-term generally, short and effects. See prosecution criminal is often difficult be Orr, H1-2; supra, McMurry, Preston cause, cases, it is the victim’s word most Beyond Scars Abuse Radiate Far the Vic abuser, put it anoth that of the tim, Republic, Sunday, The Arizona March way, against that of an er a child’s word 30, 1997, at HI. than chil More 2.9 million adult. *5 neglect dren are the victims of abuse and criminal are often out of Because sanctions Orr, year. supra, each at H2. One in four victims, many reach for abuse and because.of girls boys sexually and one six are abused. claims, unique nature of their victims of eases, percent Id. Of these of the time the begun to reliance on sexual abuse have seek (citing child knows the abuser. Id. child- However, justice system. the civil courts Rape from A abuse statistics America: very accept these claims. have been slow to Nation, Report special reports of the to so, jurisdictions, many recognizing Even Statistics, Bureau of Justice Child Abuse & only to rigid a statute of limitations serves Justice, Neglect, Department of Na U.S. redress, a of bar whole class individuals Steps: tional Institute of Justice and Second adopted have certain theories that serve to 1-3). Grades toll the statute of limitations and allow child- The victims of these crimes suffer life- hood victims of sexual abuse to seek vindica- shame, humiliation, long damage low of system. tion from the civil court The abusers self-esteem and addiction. practice a subtle form of warfare. It is a Arizona, jurisdictions, recog- like other has deadly psychological warfare in which 33 nized three distinct theories which serve to tell; percent specifically tell the child not to toll the statute of limitations for victims percent portray sexual abuse as edu- However, Arizona, unlike childhood abuse. game; percent anger cation or as a use jurisdictions, high such other has established force, physical a threat of and 20 any and/or hurdles in order to obtain sort of say or to percent threaten loss love group a of claimants has limited child that is to blame. bring he/she to been able to cases of sexual abuse summary judg- court and survive motions for Id. See, Thus, e.g., ment. Florez. most claim- perpetrator The of the abuse often occu- case, ants, plaintiffs in this such as the pies position authority, a such as a father effectively attaining still barred from teacher, as this and uses the satisfactory redress in a court of law. sort of Thus, relationship keep to the victim silent. victim, why I Ari- vulnerability of the In order to elaborate believe because of the abuser, heading judicial path close to the zona is down an unwise the often by denying for a whole continue to be unre- access to the courts most sexual abuse cases reported, plaintiffs, as illustrated the law ported. Even when abuse is vic- class of Florez, I inadequate protection will examine tims often receive established Ariz.L.Rev., exceptions used to toll supra, three that have been treatment. See “unsound enough to constitute abuse was not limitations the statute of P.2d at 255. mind.” Id. at cases, exceptions do analyze why these to obtain in this ease not enable “unsound mind” problem The satisfactory judicial resolution of any form of analysis, presented least as it is their claims. present them is that the “in completely “incompetent” or
selves as
This, in
is tolled.
sane” before the statute
Mind
1. Unsound
many ways,
the victim —she
re-traumatizes
a
ways
in either
of the
One
publicly present
come forward and
forced to
or other civil claim can toll
sexual abuse
mentally deranged
she can
before
herself
prove he or she
of limitations is to
summary judgment.
survive a motion for
mind,”
therefore
of “unsound
and was
requirement opens a whole host of other
This
bring his or her claim within
unable to
“insane,”
legal problems, for if the victim is
period.
particular,
relevant
legally
a lawsuit or must she first
can she
file
12-502(A)
that the stat-
A.R.S. section
states
file
guardian
appointed
ad litem
have a
only for a
will be tolled not
ute of limitations
through
Ruvalcaba
suit for her? See
person
age
eighteen,
but also
under
Ruvalcaba,
Stubblefield
for those of “unsound mind.” The statute
(A
(App.1993)
guardian
petition
can
P.2d 674
the removal
limitations is tolled
“after
marriage on behalf of an
for dissolution of
disability,”
person
of the
at which time such
ward.). Furthermore,
incompetent
adult
bring
the ac-
“shall have the same time”
convince a
plaintiff must be able to
“insane”
§ 12-
tion which is allowed to others. A.R.S.
abuse
guardian or next friend that the sexual
very
place.
took
hurdle
credibility when
lawsuit will hurt the victim’s
court, in
of Allen v.
This
the seminal case
by weighing
jury
must decide the case
Inc.,
Int’l,
mind”
defined “unsound
Powell’s
testimony against
that of the
the victim’s
person
is unable to
[that]
“such
be
*6
abuser,
sanity
usually called into
whose
is not
legal
manage his affairs or to understand
Indeed,
may
the
question.
find
rights
Ariz.App.
or liabilities.” 21
testify
all.
incompetent to
at
plaintiff to be
(1974) (citation omitted).
588, 589
518 P.2d
Peeler,
P.2d 335
State
interpreted
in
“un
Our
court
Florez
(A
incompetent to testi
(App.1980) witness is
narrower defini
sound mind” to have a much
in
fy
perceive
if
to
the event
she is unable
tion,
part
essentially overlooking the second
court.);
also
question and relate it to the
see
concerning
the
of the definition Allen
abili
Evidence;
the Arizona Rules of
Rule 601 of
rights.
ty
legal
understand one’s
See Flo
to
12-2202(1) (Persons
§
who are of
see A.R.S.
rez,
at 255. The
lieve from the strict time restrictions under Court that as a actually ability cumstances of this hold person who lacks the affliction, pursue matter of law Bruce Frankie should be capacity, due to mental liability predatory for his rights.” at 321. insulated his lawful Id.
429 recognized that the supreme court has they The were not conduct on children because in a is rooted “[elquitable doctrine from their fear to free themselves able exceptions to statute of common-law number they years after reached within two limitations, including ... defendant’s eighteenth birthday. actions of cause of fraudulent concealment Florez, noted that supreme In court plaintiff ... inducement defendant’s holding which was a narrow Ulibarri was suing par disability of the ... [and] sue in that case. specific to the facts involved Kadota, Hosogai v. ty____” Florez, at 257. Ariz. at (1985). However, P.2d characterized Ulibarri apply this doc supreme court refused to variety amalgamation unprecedented “an in Florez. trine including equity, ... legal theories hand, allege that plaintiffs at In the case rule,’ ‘delayed discovery and concealment.” be- distinguishable from Florez their case is Id. to all three Frankie’s threats cause of Coach analyzed in disagree I with the law as tell coercing them to never plaintiffs and Florez, rigidly applies the statute of abuse and to take anyone about the sexual to take into account the limitations and fails grave.” A review of this their secret “to the impediments that can unique psychological many instances of coercion record reveals to assert a sexual abuse victim to fail cause Frankie that result- and threats from Coach claims, legal rights or even to realize that or timely pursuing ed in all three rights such exist. instance, during the course their claims. For mother, brought by Johnson’s lawsuit Moreover, in trau addition to the terrible in- suggests that Coach Frankie the record ma emotional harm suffered most to her mother to write letters duced Johnson abuse, many plaintiffs of victims of sexual Washington High principal of and to the thinking that this sort are either deluded into contending that Johnson was not sex- fault,” or, is “normal” or “their the abuse ually Frankie. These involved with Coach plaintiff as with the Moonshadow evidence, may into were admitted letters death if are threatened with conceal- indicative of active be considered anyone they tell else about the acts of abuse. Frankie. ment Coach Hammer, Hammer v. Wis.2d addition, deluded all (App.1987); Coach Frankie N.W.2d see 33 L.Rev., 429; Orr, believing the sexual supra, supra, into see also three relationship he had with them while H2. the defendant has caused the When “normal,” was done out of time were minors was plaintiff to refrain from within the them, and that each applicable frame out statute of his love for set within limitations, arguably “special” him. These statements by misleading plain whether conduct, Frankie that Coach tiff about the nature of the threaten constitute concealment deliberately plaintiffs to believe that what was ing injury, or misled through happening to them was not sexual plaintiff’s memory repressing the Ulibarri, plaintiffs did not file claims equity therefore hypnosis as demands *8 statutory period. expiration of the plaintiff can well after the statute be tolled until the overtly threatened Finally, Frankie impediments that the defen Coach overcome the by telling people her that close her deliberately up prevent plain Nolde set dant See, get with the if she “did not timely e.g., would be harmed filing. tiff from Hildebrand him, and that Hildebrand, 1512, having sex with F.Supp. program” 736 1523-24 v. (1990) (The harmed if she decided to tell she could be court tolled the statute when Certainly relationship. anyone victim was about who was the father of the abuser horribly extreme as are not as victim into these threats also a doctor and deluded the against in Florez. Clear part those Moonshadow believing problems were her emotional apply declined to imbalance,” ly, than a re since of a “chemical rather case, 162, is abuse.); Ulibarri, estoppel in that this court equitable 178 Ariz. at sult of his applying it here. certainly constrained 871 P.2d 709. 430
Moreover, this court has stated that before tiff wrongful could not have discovered the estoppel equitable sort of or can acts until post-hypnotic sugges- 1990 due to apply, plaintiff positive must “show some tions. Id. part act” on the of the defendant “in that recently This court also held “that plaintiff
duced” the
to forbear from
suit
discovery
applies
repressed
rule
to cases of
action,
or concealed the cause of
addi memory alleged to arise from childhood sexu-
tion, any
by
threats made
the defendant
Doe,
609,
al abuse.”
Ariz. at
187
931 P.2d at
Roe,
very “specific.”
must be
See Doe v.
187
1119.
Doe claimed that her
605,
931
(App.1996)
P.2d 1115
review
sexually
father had
abused her as a child and
Donahue,
pending; Floyd
409,
v.
186 Ariz.
developed psychological
“she
coping mecha-
(A
(App.1996)
923 P.2d
using
875
father
his
nisms
completely
which caused her to
re-
parental authority
and threats
press
memory
607,
of this abuse.” Id. at
daughter
enough
was not
to toll the statute
Doe,
431
(1994)
950,
Ill.Dec.
Nolde first confided to minister about
203
ed the
foreclosing any action. Id. This cause of Kenyon
holding contradicts in which the under
same court held that an absolute bar
three-year
limitations was un-
statute of
dis-
constitutional when the victim did not
until after the
cover that the
existed
COMPANY,
INSURANCE
ALLSTATE
Kenyon,
of limitations had run. See
Plaintiff-Appellee,
corporation,
principle.” 106 Nev. Petersen 18, 24 I do not think the it in mind when
legislature had such result section 12-502. This
first enacted A.R.S. 1901,long before child
section was enacted public ever in the consciousness.
abuse was states,
Moreover, “the Arizona’s Constitution inju damages for
right action to recover abrogated, and the
ries shall never be subject any not be recovered shall
amount art. XVI
statutory limitation.” Ariz. Const.
II, legislature can Though section tort, it cannot
regulate causes of action A cause of action
abrogate such action. eighteen, six of
protected Article Section “fundamental is a
the Arizona Constitution
Kenyon,
right” in Arizona. P.2d at 971-75. * Moeller, J., participate this matter. in the determina- tion of did not