Robin Altstatt SCARBOROUGH, et al. v. Leslie B. ALTSTATT.
No. 1248, Sept. Term, 2015.
Court of Special Appeals of Maryland.
June 30, 2016.
140 A.3d 497
Adam L. Van Grack (Longman & Vаn Grack, LLC, Bethesda, MD, Steven Van Grack Law PC, Rockville, MD), on the brief, for appellant.
Jennifer L. Mayer (Richard A. Finci, Houlon, Berman, on the brief), Greenbelt, MD, for appellee.
Panel: KRAUSER, C.J., MEREDITH, and BERGER, JJ.
BERGER, J.
On appeal, the Appellants present a single question for our review, which we have rephrased as follows:
Whether the circuit court erred by ruling that the Appellants’ complaint was barred by the statute of limitations.
Altstatt has moved to dismiss this appeal, arguing that the Appellants failed to file a timely notice of appeal. For the reasons explained herein, we shall deny Altstatt‘s motion to dismiss this appeal and hold thаt the circuit court did not err by ruling that Appellants’ claims were barred by the statute of limitations.
FACTS AND PROCEEDINGS
On December 4, 2014, the Appellants filed a complaint in the Circuit Court for Montgomery County alleging one count each of intentional infliction of emotional distress, assault and battery, and negligence as a result of sexual abuse by Altstatt while the Appellants were minor children. The alleged abuse occurred between 1964 and 1984.
On January 20, 2015, Altstatt filed a motion to dismiss the complaint, arguing that the Appellants’ claims were barred by the statute of limitations. The Appellants opposed the motion to dismiss. The Appellants argued that they sufferеd from dissociative amnesia which, they alleged, should toll the stat-ute of limitations until the time they began to remember the abuse in early 2014. The circuit court held a hearing on the motion to dismiss on April 22, 2015. At the conclusion of the hearing, the circuit court granted Altstatt‘s motion to dismiss because the claims were barred by the statute of limitations. The court reduced its judgment to a written order which was docketed on April 24, 2015.
On May 4, 2015, the Appellants filed a motion to alter or amend the order granting Altstatt‘s motion to dismiss. Altstatt filed an opposition on May 21, 2015. On June 9, 2015, the circuit court issued the order that forms the basis for Altstatt‘s motion to dismiss the extant appeal. The June 9, 2015 order provides:
UPON CONSIDERATION of Plaintiffs’ Motion to Alter or Amend This Court‘s Order Granting Defendant‘s Motion to Dismiss Complaint, it is this 9th Day of June 2015, by the Circuit Court of Maryland for Montgomery County, it is hereby
ORDERED: That Defendant‘s Motion to Dismiss Complaint is DENIED.
(Emphasis added.)
The June 9 order was docketed on June 12, 2015. The docket entry provided:
ORDER OF COURT (SALANT, J.) THAT PLAINTIFFS’ MOTION TO ALTER OR AMEND THIS COURT‘S ORDER GRANTING DEFENDANT‘S MOTION TO DISMISS COMPLAINT IS DENIED, ENTERED. (COPIES MAILED)
On July 16, 2015, the circuit court issued a subsequent order titled “AMENDED ORDER.”2 The order provided:
Upon consideration of Plaintiffs’ Motion to Alter or Amend, filed May 4, 2015 (docket entry # 28), and Defendant‘s Opposition thereto, filed May 21,
2015 (docket entry # 29), and pursuant to Maryland Rule 2-535(d), it is ... ORDERED that Plaintiffs’ Motion to Alter or Amend (docket entry # 28) shall be, and hereby is, DENIED.
On August 6, 2015, Appellants filed a notice of appeal. On August 17, 2015, Altstatt filed a motion to strike the Appellants’ notice of appeal, which was denied by the circuit court on September 16, 2015.
On November 2, 2015, Altstatt filed a motion to dismiss the appeal in this Court, arguing that the Appellants’ notice of appeal was untimely. The Appellants filed an opposition on November 16, 2015. On November 30, 2015, this Court denied Altstatt‘s motion to dismiss the appeal with leave to raise the issues in the briefs. In his brief, Altstatt subsequently moved to dismiss the Appellants’ appeal as untimely. We, therefore, address the motion to dismiss the appeal herein.
DISCUSSION
I. Motion to Dismiss Appeal
Altstatt asserts that the Appellants’ appeal must be dismissed as untimely. Altstatt argues that the Appellants’ nоtice of appeal was due within thirty days of the circuit court‘s June 12, 2015 order. Because the Appellants’ notice of appeal was not filed until August 6, 2015, Altstatt asserts that the notice of appeal was untimely filed. As we shall explain, we are unpersuaded.
Altstatt maintains that the trial court‘s June 12 order “contained a clerical error.” As set forth supra, the June 12 order provided that the order was being entered “UPON CONSIDERATION of [the Appellants‘] Motion to Alter or Amend.” The order, however, did not expressly issue a ruling on the motion to alter or amend. Rather, the order provided that Altstatt‘s “Motion to Dismiss Complaint is DENIED.” Altstatt argues that the order “should hаve read ‘Plaintiff‘s Motion to Alter or Amend is DENIED‘” and that the reference to the motion to dismiss rather than to the motion to alter or amend was an obvious mistake. Altstatt asserts that the circuit court clerk “correctly understood the [o]rder to mean that the [Appellants‘] Motion to Alter or Amend was denied and entered the denial on the docket.”
The Appellants respond that the June 12 order did not actually rule upon the Motion to Alter or Amend. The Appellants further assert that the instant appeal “was timely made from the only order to which the Plaintiffs/Appellants could appeal—the July 16 Order.” The Appellants further argue that there is no factual support or evidence to support Altstatt‘s position that the June 12 order contained a “clerical error.”
Whether a final judgment has been entered “turns on whether the court indicated clearly that it had fully adjudicated the issue submitted and had reached a
In order for that moment of final judgment to arrive, the judge‘s order must 1) be intended as an unqualified and final disposition of the matter in controversy, 2) adjudicate all claims entirely unless certified pursuant to
Md. Rule 2-602(b) , and 3) the clerk must make a proper record of the judgment.
Jenkins v. Jenkins, 112 Md. App. 390, 402, 685 A.2d 817 (1996) (footnote omitted), superceded by rule as stated in Bussell v. Bussell, 194 Md. App. 137, 152-54, 3 A.3d 480 (2010) (relating to savings provision for a prematurely filed appeal).
In the instant case, the circuit court did not render an “unqualified, final disposition” with respect to the Appellants’ motion to alter or amend until July 16, 2015. Indeed, the circuit court‘s issuance of an “amended order” strongly suggests that the circuit court itself recognized that the June 12 order had failed to rule on the Appellants’ motion to alter or amend. Furthermore, as we explained in Jenkins, in order for a judgment to be final, “the clerk must make a proper record of the judgment.” Id. In this case, the clerk of the circuit court did not enter a proper record of the June 12 order. The circuit court‘s June 12 order provided that Altstatt‘s motion to dismiss complaint was denied, but the corresponding docket entry provided that the Appellants’ motion to alter or amend was denied. Because the June 12 order failed to render a judgment on the motion to alter or amend, and because the clerk failed to enter a proper record of the June 12 order, the June 12 order was not a final judgment from which an appeal could be taken. Rather, the July 16 order, which issued an unqualified, final disposition on the motion to alter or amend, constituted a final judgment, and it is from this judgment that Appellants noted a timely appeal. Accordingly, we hereby deny Altstatt‘s motion to dismiss Appellants’ appeal.
II. Statute of Limitations
We next turn our attentiоn to whether the circuit court erred by determining that the Appellants’ claims against Altstatt were barred by the applicable statute of limitations. The facts which Appellants allege as the basis of their claims all occurred when the Appellants were minors. Pursuant to the applicable three-year statute of limitations in effect at the relevant time, the Appellants were required to bring their claims within three years of reaching majority. The general civil statute of limitations applicable at the time Appellants reached the age of majority provided:
A civil action at law shall be filed within three years from the date it accrues unless another provision of the Code provides a different period of time within which an action shall be commenced.
The Appellants assert that they have dissociative amnesia which, they allege, was caused by childhood sexual abuse perpetrated by their father. The Appellants define dissociative amnesia as a condition that “involves a reversible memory impairment in which memories of personal experience cannot be retrieved in a verbal form (or, if temporarily retrieved, cannot be wholly retained in consciousness).” The Appellants assert that they were each unable to recall “the details of the abuse” by Altstatt until January 2014, when Robin was hospitalized in an inpatient trauma disorders unit for a ten-day period. According to the Appellants, during Robin‘s hospital-ization, Robin “realized for the first time the wide and deep effects of the sexual abuse” by Altstatt. Robin‘s sisters assert that Robin‘s hospitalization rekindled their own memories of the abuse. Carol rеported that when Robin was hospitalized, “the whole mess was revived in frightening dimension” and the “incident brought back the horror I endured as a child.” Alice reported that “[i]t was only upon the recent hospitalization of my sister, Robin, for depression and suicidal ideation that I started to comprehend what had occurred.”
On December 4, 2014, within a year of Robin‘s hospitalization, the Appellants filed the complaint giving rise to the present appeal.6 The Appellants assert that the application of Maryland‘s discovery rule, which the Appellants assert should toll the statute of limitations due to the Appellants’ dissociative amnesia, renders their complaint timely filed.
Historically, under Maryland law, causes of action “‘accrued on the date of the wrong.‘” Doe v. Maskell, 342 Md. 684, 689, 679 A.2d 1087 (1996) (citing Hahn v. Claybrook, 130 Md. 179, 182, 100 A. 83 (1917)). Under the traditional rule, claims that were not discovered until after the expiration of the limitations period were automatically barred. Id. The historical rule “did not distinguish between a blamelessly ignorant plaintiff and one who had acted negligently and slumbered on his rights.” Id. at 690, 679 A.2d 1087 (internal quotations and citations omitted). It was in response to this harsh application of the historical rule that the Court of Appeals developed the “discovery rule,” under which “a cause of action ‘acсrues’ when [a] plaintiff knew or should have known that actionable harm has been done to him.” Id.
Although originally applied in the context of cases involving medical malpractice, the discovery rule was ultimately made applicable to all civil matters. Poffenberger v. Risser, 290 Md. 631, 637, 431 A.2d 677 (1981). The Court of Appeals has explained:
We held [in Poffenberger] that in order to “activate the running of limitations [it must be proven that the plaintiff had] actual knowledge—that is express cognition, or awareness implied from ‘knowledge of circumstances which ought to
have put a person of ordinary prudence on inquiry [thus, charging the individual] with notice of all facts which such an investigation would in all probability have disclosed if it had been properly pursued.‘”
Maskell, supra, 342 Md. at 690, 679 A.2d 1087 (quoting Poffenberger, supra, 290 Md. at 637, 431 A.2d 677 (quoting Fertitta v. Bay Shore Dev. Corp., 252 Md. 393, 402, 250 A.2d 69 (1969))).
A. The Decision of the Court of Appeals in Doe v. Maskell
Nearly twenty years ago, the Court of Appeals addressed the application of the discovery rule to a case involving repressed memories of childhood sexual abuse in Maskell, supra, 342 Md. 684, 679 A.2d 1087. The Court identified the issue before it as “whether the ‘discovery rule’ applicable to the time-bar of the statute of limitations on civil actions at law ... applies to cases of allegedly ‘repressed’ and ‘recovered’ memories.” Id. at 686, 679 A.2d 1087.7 The Court found that “the critical question to the determination of the applicability of the discovery rule to lost memory cases is whether there is a difference bеtween forgetting and repression.” Id. at 691, 679 A.2d 1087. The Court explained this distinction as follows:
It is crystal clear that in a suit in which a plaintiff “forgot” and later “remembered” the existence of a cause of action beyond the 3-year limitations period, that suit would be time-barred. Dismissal of such a case reflects our judg-
ment that the potential plaintiff had “slumbered on his rights,” should have known of his cause of action, and was blameworthy. To permit a forgetful plaintiff to maintain an action would vitiate the statute of limitations and deny repose for all defendants.
Id. at 692, 679 A.2d 1087.
In order to determine whether there was a difference between forgetting and repression, the Court examined “expert testimony provided at the summary judgment hearing” and “numerous scientific journals submitted by the parties.” Id. The Court observed that “[e]ven defining the term [of repression] is not easy.” Id. The Court provided the following definition of repression set forth by David S. Holmes in The Evidence for Repression: An Examination of Sixty Years of Research, in REPRESSION AND DISASSOCIATION: IMPLICATIONS FOR PERSONALITY, THEORY, PSYCHOPATHOLOGY AND HEALTH 85, 85-86 (J. Singer, ed. 1990):
It is my belief that in its general use the concept of repression has three elements: (1) repression is the selective forgetting of materials that cause the individual pain; (2) repression is not under voluntary control; and (3) repressed material is not lost but instead stored in thе unconscious and can be returned to consciousness if the anxiety that is associated with the memory is removed. The assertion that repression is not under voluntary control differentiates repression from suppression and denial, with which it is sometimes confused....
Maskell, supra, 342 Md. at 693, 679 A.2d 1087.
The Court commented that the petitioners had “provided [the Court] with several studies purporting to validate the diagnosis of repression.” Id. (citing various articles). The Court noted, however, that the respondents “ha[d] also offered significant scientific information tending to discredit
Finally, critics of repression theory argue that thе “refreshing” or “recovery” of “repressed” memories is more complicated than repression proponents would have us believe. This argument takes two forms: (1) that memories refreshed with the assistance of a mental health professional are subject to manipulations reflecting the biases of the treating professional; and (2) that a repressed memory cannot be retrieved whole and intact from the cold storage of repression.
Id. at 695, 679 A.2d 1087.
After having reviewed the arguments on both sides of the issue, the Court was “unconvinced that repression exists as a phenomenon separate and apart frоm the normal process of forgetting.” Id. As such, because the Court concluded that repression and the normal process of forgetting were “indistinguishable scientifically,” the Court reasoned “that they should be treated the same legally.” Id. Accordingly, the Court held that “the mental process of repression of memories of past sexual abuse does not activate the discovery rule.” Id. Notably, the Court observed that “[i]f the General Assembly should wish to rewrite the law, that is its prerogative and responsibility.” Id.
B. The Appellants’ Challenge to the Underlying Rationale of Maskell
The Appellants do not dispute that Maskell involved similar facts and a similar statute of limitations issue to that presented in this appeal. Nor do the Appellants dispute that the Court of Appeals in Maskell held that “repression of memories is an insufficient trigger to compel the application of our discovery rule.” 342 Md. at 686, 679 A.2d 1087. The Appellants urge, however, that “the scientific community and empirical evaluation regarding the mental condition of memory alteration in sexual abuse victims has changed significantly” in the years since Maskell was decided. The Appellants assert that, due to the “significant change and growth of empirical evidence” in this area, the rationale behind the Court‘s holding in Maskell is no longer applicable. The Appеllants point to changes in four areas: (1) the Diagnostic and Statistical Manual of Mental Disorders (“DSM“),8 (2) various peer-reviewed scientific studies and evaluations published in the past nineteen years, (3) expert testimony, and (4) decisions from courts of other jurisdictions.
With respect to the DSM, the Appellants emphasize that two new editions of the DSM have been published since the Court of Appeals issued its decision in Maskell, both of which provided updated definitions for “sexual-abuse-related memory
The Appellants urge this Court to rely upon the DSM with respect to the “empirical nature of the mental-health condition at issue before this court” and conclude that the holding of the Court of Appеals in Maskell is no longer valid. The Appellants emphasize that the DSM has been relied upon by both this Court and the Court of Appeals in a wide variety of contexts. Indeed, we have cited to the DSM in a myriad of cases. See, e.g., Black & Decker Corp. v. Humbert, 189 Md. App. 171, 190, 984 A.2d 281 (2009) (citing the DSM-IV for the definition of somatization disorder); Pettit v. Erie Ins. Exch., 117 Md. App. 212, 228, 699 A.2d 550 (1997) aff‘d 349 Md. 777, 709 A.2d 1287 (1998) (taking judicial notice of the definition of pedophile provided in the DSM-IV). The Court of Appeals has similarly relied upon the DSM. See, e.g., Menefee v. State, 417 Md. 740, 745, 12 A.3d 153 (2011) (citing the DSM for the definition of posttraumatic stress disorder); MAMSI Life & Health Ins. Co. v. Callaway, 375 Md. 261, 264, 825 A.2d 995 (2003) (citing the DSM for the definition of hypoxyphilia). The Appellants further point to multiple references to the DSM in the Code of Maryland Regulations (“COMAR“) as additional suppоrt of the importance of the DSM, commenting that COMAR “references the DSM thirty-six (36) times as an authoritative source for mental disorders.” Because the DSM now recognizes the mental health condition of dissociative amnesia, and because Maryland appellate courts have repeatedly relied upon the DSM as an authoritative source, the Appellants urge us to conclude that the reasoning behind the Maskell decision is no longer compelling.
The Appellants additionally point this Court‘s attention to various scientific research on dissociative amnesia over the past nineteen years. The Appellants assert that the “literally hundreds” оf articles on dissociative amnesia demonstrate that “dissociative amnesia (1) is a distinct mental condition, (2) is suffered as a direct result of sexual abuse, and (3) is not merely forgetting.” The Appellants note that empirical evidence exists now which did not exist at the time Maskell was decided. The Appellants further urge that the current empirical evidence compels a holding that the discovery rule should be applied to claims of childhood sexual abuse involving dissociative amnesia.
Altstatt responds that there is nothing in the record to support the Appellants’ assertions with respect to the validity of dissociative аmnesia or the changes in the scientific community‘s view of that disorder. Altstatt asserts that it was only after the circuit court dismissed the Appellants’ complaint that the Appellants submitted journal articles and DSM excerpts for the circuit court‘s consideration, as attachments to the motion to alter or amend. Altstatt emphasizes that the circuit court never reopened the judgment to admit any additional evidence.
The Appellants also direct this Court‘s attention to various rulings addressing related issues from courts of other jurisdictions. The Appellants assert that there is a “clear trend” in the United States of permitting victims of childhood sexual abuse to bring their claims “within the statute of limitations once their memories are finally accessible.” The Appellants cite to cases from Arizona, see Doe v. Roe, 191 Ariz. 313, 955 P.2d 951, 960 (1998) (“Application of the discovery rule to tort sexual abuse cases is ... thе majority rule in this country.“), Massachusetts, see Clark v. Edison, 881 F. Supp. 2d 192, 201-02 (D. Mass. 2012) (permitting expert testimony on dissociative amnesia after applying the analysis set forth in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S. Ct. 2786, 125 L. Ed. 2d 469 (1993)), South Carolina, see Moriarty v. Garden Sanctuary Church of God, 341 S.C. 320, 331-32, 534 S.E.2d 672 (2000) (expressing the view that “equating a repressed memory to merely ‘forgetting’ ignores advances in the understanding of the human mind“) aff‘d, 341 S.C. 320, 534 S.E.2d 672 (2000), overruled on other grounds by State v. Cherry, 361 S.C. 588, 606 S.E.2d 475 (2004), Florida, see Hearndon v. Graham, 767 So. 2d 1179, 1186 (Fla. 2000) (holding that “the delayed discovery doctrine applies to the accrual of the instant cause of action based on a claim of childhood sexual abuse accompanied by traumatic amnesia“), Oregon, see State v. Gherasim, 329 Or. 188, 985 P.2d 1267 (1999) (holding that the trial court erred by excluding expert testimony about dissociative amnesia), and Indiana, see Doe v. Shults-Lewis Child & Family Servs., Inc., 718 N.E.2d 738 (Ind. 1999) (holding that the equitable doctrine of fraudulent concealment would toll the statute of limitations when a victim could demonstrate that a defendant‘s conduct caused the repression of memories of abuse).
The Appellants advocate that “[i]t is time for Maryland courts to recognize what many other courts (and scientists) across the United States have already come to realize since 1996, that memory alteration through dissociative amnesia in child sexual abuse cases is different from the normal process of forgetting, and when applicable, dissociative amnesia should activate the discovery rule and toll the statute of limitations for sexual abuse civil claims.” We note, however, that Maryland courts have not always adopted the reasoning of the majority of other jurisdictions, even when the consensus among other courts is nearly overwhelming. See Coleman v. Soccer Ass‘n of Columbia, 432 Md. 679, 694, 69 A.3d 1149 (2013) (declining to adopt a comparative negligence standard and instead maintaining the strict contributory negligence standard, a
Indeed, following the Court of Appeals’ decision in Maskell, the General Assembly addressed the issue of the statute of limitations for claims relating to child sexual abuse. In 2002, the General Assembly extended the applicable statute of limitations for civil claims arising out of childhood sexual abuse to seven years after the victim reaches the age of majority. 2003 Md. Laws Ch. 360 (S.B. 68), codified at
Moreover, this issue has also been considered more recently by the Maryland General Assembly. Bills were introduced in both chambers of the General Assembly during the 2016 Session which would have extended the time for filing civil claims arising out of childhood sexual abuse to twenty years after the victim reached the age of majority. S.B. 69, 2016 Leg., 436th Session; H.B. 1215, 2016 Leg., 436th Session. Neither bill proceeded to a floor vote. The Court of Appeals hаs emphasized that when the General Assembly has “repeated[ly] fail[ed] to pass [particular] legislation,” such a failure “is very strong evidence that the legislative policy in Maryland is to retain the” current law. Coleman, supra, 432 Md. at 694, 69 A.3d 1149.
In this appeal, the Appellants maintain that the underpinnings of the Maskell decision are less persuasive today than twenty years ago, when the case was decided by the Court of Appeals.10 Nevertheless, we must be cognizant of our role as an intermediate appellate court. Regardless of whether one agrees or disagrees with the Court of Appeals’ decision in Maskell, it is the law of the State unless and until the Court of Appeals revisits this issue or the legislature acts to change the law. Accordingly, pursuant to the Court of Appeals’ decision in Maskell, the discovery rule does not apply to toll the statute of limitations in cases involving memory impairment relating to alleged childhood sexual abuse. 342 Md. at 695, 679 A.2d 1087.11
It may very well be that the Court of Appeals ultimately determines that it would be appropriate to reconsider its holding in Maskell. Nevertheless, that determination is solely within the province of the Court of Appeals. We do not intend to minimize the seriousness of the allegations in the present case. Cases involving claims of childhood sexual abuse are among the most disturbing encountered by this Court, and we recognize that victims of childhood sexual abuse often suffer lifelong consequences. Nonetheless, Maskell clearly holds that the discovery rule does not toll the statute of limitations for claims arising out of childhood sexual abuse. As such, the circuit court did not err by dismissing the Appellants’ complaint as untimely filed. Accordingly, we affirm.
MOTION TO DISMISS APPEAL DENIED. JUDGMENT OF THE CIRCUIT COURT FOR MONTGOMERY COUNTY AFFIRMED. COSTS TO BE PAID BY APPELLANTS.