Case Information
*1 IN THE SUPREME COURT OF MISSISSIPPI
NO. 2020-CA-00418-SCT
ROBERT McGOWEN
v.
ROMAN CATHOLIC DIOCESE OF BILOXI AND
SACRED HEART CATHOLIC CHURCH
DATE OF JUDGMENT: 04/17/2020
TRIAL JUDGE: HON. JON MARK WEATHERS TRIAL COURT ATTORNEYS: JOHN F. HAWKINS
ROBERT T. SCHWARTZ CHRISTIAN STRICKLAND JORDAN R. MATHEWS COURT FROM WHICH APPEALED: FORREST COUNTY CIRCUIT COURT ATTORNEY FOR APPELLANT: JOHN F. HAWKINS ATTORNEYS FOR APPELLEES: CHRISTIAN STRICKLAND
ROBERT T. SCHWARTZ JORDAN R. MATHEWS NATURE OF THE CASE: CIVIL - TORTS-OTHER THAN PERSONAL
INJURY & PROPERTY DAMAGE DISPOSITION: REVERSED AND REMANDED - 06/17/2021 MOTION FOR REHEARING FILED:
MANDATE ISSUED:
BEFORE KING, P.J., COLEMAN AND BEAM, JJ.
COLEMAN, JUSTICE, FOR THE COURT: ¶1. In Sеptember 2019, Robert McGowen filed a complaint in the Forrest County Circuit Court alleging that he had been sexually abused by a priest at Sacred Heart Catholic Church in 1984 and 1985 when McGowen was twelve to thirteen years old. According to McGowen, he repressed the memories until December 2018. Sacred Heart Catholic Church and the Roman Catholic Diocese of Biloxi answered the complaint and moved to dismiss based on *2 the expiration of the statute of limitations in Mississippi Code Section 15-1-49. On April 17, 2020, the circuit court entered an order dismissing the complaint without prejudice. McGowen appeals.
FACTS AND PROCEDURAL HISTORY
¶2. In December 2018, McGowen allegedly recalled that, in or around 1986, while attending class as Sacred Heart, Father John Scanlon had masturbated McGowеn and instructed McGowen to masturbate him. In January 2019, McGowen began receiving therapy from Dr. Deborah Dawes to work through the trauma of the alleged abuse. Dawes determined that McGowen suffered from major depression and post-traumatic stress disorder with symptoms of excessive anxiety, intrusive memories, nightmares, difficulty sleeping, and suicidal ideation. Dawes opined that McGowеn’s reports of abuse were credible and that he had repressed his memories of the abuse.
¶3. On September 17, 2019, McGowen filed a complaint, naming the Estate of Father Scanlon, Sacred Heart Catholic Church, and the Roman Catholic Diocese of Biloxi as Defendants. McGowen claimed that when he was twelve to thirteen years old in 1984 or 1985, Scanlon physically, sexually, аnd emotionally abused him in the rectory of Sacred Heart. Sacred Heart and the Diocese answered the complaint and moved to dismiss under Mississippi Rule of Civil Procedure 12, arguing that McGowen’s claims were barred by the statute of limitations in Mississippi Code Section 15-1-49.
¶4. On April 17, 2020, the circuit court entered an order dismissing the complaint. The circuit court found that McGowen’s claims werе governed by the general statute of limitations in Mississippi Code Section 15-1-49. McGowen appeals.
STANDARD OF REVIEW
¶5.
“A Rule 12(b)(6) motion to dismiss tests the legal sufficiency of a claim.”
Children’s
Med. Grp., P.A. v. Phillips
,
DISCUSSION
¶6. McGowen argues that the circuit court erred by failing to apply the discovery rule to his claims. Under Mississippi Code Section 15-1-49(2), “In actions for which no other period of limitation is prescribed and which involve latent injury or disease, the cause of action does not accrue until the plaintiff has discovered, or by reasonable diligence should have discovered, the injury.” Miss. Code Ann. § 15-1-49(2) (Rev. 2019). McGowen argues *4 that since his memories were repressed until December 2018, he suffered a latent injury and timely filed his claim.
I. The circuit court erred by failing to apply the discovery rule.
¶7. In the case sub judice , the judge stated,
The case cited by the Church Defendants, Doe v. Roman Catholic Diocese of Jackson , 947 So. 2d 983 (Miss. Ct. App. 2006) considered whether the discovery rule and fraudulent concealment applied in a priest sex abuse casе, but not in the context of repressed memory or unsound mind tolling. Without guidance from the appellate courts, or specific language from the legislature, this Court is unwilling to create a new rule to toll the period of limitations for repressed memories.
¶8. The Court of Appeals in
Doe
held, “[t]he discovery rule does not apply in Doe’s case.
Our supreme court has held that where there is no latent injury, the discоvery rule cannot
apply.”
Doe v. Roman Catholic Diocese of Jackson
,
the acts of abuse alleged by Doe are physical acts of which a person is generally aware when the event occurs. Given the nature of the physical acts Doe alleges she endured . . . and her age at the time of the abuse, Doe was certainly aware of the abuse at the time of its occurrence. at 986 (¶ 7).
¶9. Additionally, Doe did not argue that she did not remember the events. Doe argued
that her injury was a latent injury because “she did not psychologically comprеhend that the
priests’ acts were abuse, she did not connect the priests’ actions to her emotional problems,
and she only recently began to psychologically comprehend that the priests’ acts were
abusive and the cause of her injuries.”
Id.
at (¶ 5). In the case
sub judice
, McGowen argues
that his injury is a latent injury because he repressed the memories of abuse, and he did not
remember that any abuse occurred until 2018. Additionally, instead of the abuse taking place
over the course of ten years, the alleged abuse amounted to a single incident that occurred
either in 1984 or 1985, when McGowen was twelve or thirteen years old. As stated correctly
by the circuit court, the court in
Doe
did not discuss repressed-memory tolling. However,
the circuit court did err by dismissing the case under Mississippi Code Section 15-1-49.
¶10. Again, Section 15-1-49 states that the “cause of action does not accrue until the
plaintiff has discovered, or by reasonable diligence should have discovered, the injury.”
Miss. Code. Ann. § 15-1-49(2). The Court has stated, “Because there is no bright line rule,
the specific facts of the case will determine whether the plaintiff knew or reasonabl[y] should
have known that an injury existed.”
F & S Sand, Inc. v. Stringfellow
,
¶11. The Church claims that the case
sub judice
is an issue of first impression and that the
Court should “look to other jurisdictions in determining the matter.”
Forrest Gen. Hosp. v.
Upton
,
CONCLUSION
¶12. Accepting the allegations in the comрlaint as true, the trial court erred by finding that McGowen failed to state a claim. Based on the allegations, we cannot agree that there is no set of facts upon which McGowan could recover; the decision of the circuit court is reversed and remanded.
¶13. REVERSED AND REMANDED.
RANDOLPH, C.J., KITCHENS AND KING, P.JJ., BEAM, CHAMBERLIN AND ISHEE, JJ., CONCUR. GRIFFIS, J., DISSENTS WITH SEPARATE WRITTEN OPINION JOINED BY MAXWELL, J.
GRIFFIS, JUSTICE, DISSENTING: *8 ¶14. The majority finds the circuit court erred “by failing to apply the discovery rule” and “by dismissing the case under Mississippi Codе Section 15-1-49 [(Rev. 2019)].” Maj. Op. ¶¶ 6, 9. I respectfully disagree and find the discovery rule does not apply; therefore, the case was properly dismissed.
¶15. The circuit court found McGowen’s claims were barred by the applicable statute of limitations. As the circuit court properly noted,
McGowen’s claims are governed by the general statute of limitations set forth in Mississippi Code Annоtated § 15-1-49, prior to its 1989 amendment. Claims that accrued prior to 1989 are subject to a six-year statute of limitation. Because McGowen was a minor at the time of the alleged abuse, the period of limitations was tolled until he reached the age of majority. See Mississippi Code [Section] 15-1-59 (Rev. 2003); see also Lawler v. Government Employees Ins. Co. ,569 So. 2d 1151 , 1153 (Miss. 1990). According to the [c]omplaint, McGowen was twelve years old in 1984. Therefore, barring some other tolling, the period of limitations would have expired around 1999.
¶16. Under the discovery rule, “[i]n actions for which no other period of limitation is
prescribed and which involve latent injury or disease, the cause of action does not accrue
until the plaintiff has discovered, or by reasonable diligence should have discovered, the
injury.” Miss. Code Ann. § 15-1-49(2) (Rev. 2019). “[T]o claim benefit of the discovery
rule, a plaintiff must bе reasonably diligent in investigating the circumstances surrounding
the injury.”
Wayne Gen. Hosp. v. Hayes
,
¶17. “[I]f a latent injury is
not
present the discovery rule w[ill]
not
apply.”
PPG
Architectural Finishes, Inc. v. Lowery
,
A latent injury is defined as one where the “plaintiff will be precluded from
discovering harm or injury because of the secretive or inherently
undiscoverable nature of the wrongdoing in question . . . [or] when it is
unrealistic to expect a layman to perceive the injury at the time of the wrongful
act.”
(quoting
Donald v. Amoco Prod. Co.
,
¶18. McGоwen asserts that “his injury is a latent injury because he repressed the memories of abuse, and he did not remember that any abuse occurred until 2018.” Maj. Op. ¶ 9. He argues that because his injury is a latent injury, the circuit court should have applied the discovery rule to his claims. I disagree.
¶19.
In
Doe v. Roman Catholic Diocese of Jackson
, the Court of Appeals found that
Doe’s sexual abuse claims were “time barred on their face” and that the discovery rule did
not apply because there was no latent injury.
Doe v. Roman Catholic Diocese of Jackson
,
The acts of abuse alleged by Doe are physical acts of which a person is generally aware when the event occurs. Given the nature of the physical acts Doe alleges she endured from Boyce and Broussard, and her age at the time оf the abuse, Doe was certainly aware of the abuse at the time of its occurrence. Whether or not Doe was mentally capable of understanding the physical acts she endured when they occurred is not the critical inquiry with the discovery rule. at 986.
¶20. Here, according to the complaint, the alleged abuse occurred when McGowen was
twelve to thirteen years old. As in
Doe
, “[g]iven the nature of the physical acts [McGowen]
alleges []he endured from [Father Scanlon], and h[is] age at the time of the abuse,
[McGowen] was certainly aware of the abuse at the time of its occurrence.”
Id.
¶21. The majority attempts to distinguish
Doe
by noting that “Doe did not argue that she
did not remember the events” but instead claimed that “she did not psychologically
comprehend that the priests’ acts were abuse . . . .” Maj. Op. ¶ 9 (internal quotation marks
omitted). While
Doe
“did not discuss repressed-memory tolling[,]” it is still instructive
regarding the discovery rule and latent-injury analysis. Maj. Op. ¶ 9. Here, as in
Doe
, the
alleged sexual-abuse claims “are physical acts of which a person is generally aware when the
event occurs.”
Doe
,
¶22. The majority asserts that “whether McGowen knew or reasonably should have known
about the injury is a question of fact for the jury.” Maj. Op. ¶ 11. “[O]ccasionally the
question of whether the suit is barred by the statute of limitations is a question of fact for the
jury; however, as with other putative fact questions, the question may be taken away from
the jury if reasonable minds could not differ as to the conclusion.”
Stringfellow
, 265 So. 3d
at 175 (alteration in original) (internal quotation marks omitted) (quoting
Stringer v. Trapp
,
[t]he acts of abuse alleged by [McGowen] are physical acts of which a person is generally aware when the event occurs. Given the nature of the physical acts [McGowen] alleges []he endured from [Father Scanlоn], and h[is] age at the time of the abuse, [McGowen] was certainly aware of the abuse at the time of its occurrence.
Doe
,
¶25. But I note that other jurisdictions have addressed the repressed-memory issue, and
they have rejected it. In
Travis v. Ziter
, the Travises alleged that Steve Travis was subjected
*13
to both physical and sexual abuse by Father Ziter between 1974 and 1979, while Steve was
a minor.
Travis v. Ziter
,
At its core, the statute of limitations advances the truth-seeking function of our justice system, promotes efficiency by giving plaintiffs an incentive to timely pursue сlaims, and promotes stability by protecting defendants from stale claims. The essence of the Travises’ argument is that plaintiffs should be able to use the tolling provision in any situation where they can demonstrate an inability to comprehend a specific legal right, or to recall events that happened many years before, notwithstanding the fact that they have been capable of living an independent, normal, and productive life as to all other matters. Such an expansive interpretation would undermine the purpose of the statutes of limitations. at 1355. The court noted that if it were to accept the “repressed memory” argument, “then
plaintiffs, such as the Travises, would be in subjective control of the limitations period and would be able to assert stale claims without sufficient justification or sufficient guaranties of accurate fact-finding.” Id.
¶26. Additionally, in
S.V. v. R.V.
, R. alleged that her father, S., sexually abused her until
she was seventeen years old.
S.V. v. R.V.
,
*15
¶27. “Whether or not [McGowen] [repressed] the physical acts []he endured when they
occurred is not the critical inquiry with the discovery rule.”
Doe
,
¶28. I agree with the circuit court that this case is time-barred and should be dismissed. As a result, I would affirm the circuit court’s order granting the motion to dismiss.
MAXWELL, J., JOINS THIS OPINION. made in the law of limitations or some narrow exception is to be crafted to deal only with sexual abuse cases, the matter should be addressed to the legislature. . . . In the present case, there is no legislative enactment under which O’Neal claims entitlement to the benefits of the discovery rule.”).
Notes
[1] As in Alabama and Texas, and as noted by the circuit court, “Mississippi law does
not yet recognize a tolling period for unsoundness of mind due to repressed memory in an
abuse case.”
Travis
,
