*1 Margaret SHEEHAN, Appellant, M.
Leroy SHEEHAN, Respondent. E.
Rehearing Denied Martin, City, appel-
Mitchell B. Kansas lant. Premon, respon-
Vance C. Kansas dent.
BENTON, Judge.
Margaret father Le- M. Sheehan sued her roy damages, alleging child- E. Sheehan for circuit court dis- hood sexual abuse. The beyond missed the the statute of limitation. Because contests statute, juris- validity of that this has Court Const, V, § art. S. diction. Mo. Reversed grounds. and remanded on I. April peti- filed her
On tion, asserting abused her as a *2 516.371, child, result, statute, § states in and that as a she “sustained and Another recent total: suffered and to sustain and suffer continues Notwithstanding consequential damages_” any provision
... of law to ten-year contrary, a the there shall be stated: any for dam- of limitation on action statute involuntarily repressed Plaintiff conscious ages personal injury caused to an indi- memory of the events aforedeseribed by person degree a the third vidual within throughout abuse] her childhood subjects affinity consanguinity of or young August adulthood until 1990 or contact, individual to as de- such thereafter. 566.010, fined section RSMo. granted Leroy’s The circuit court motion to (because Doe did not discuss this statute 516.120(4) 1986, § dismiss based on RSMo there). was How familial abuse not reasoning Margaret’s that claim accrued Doe, ever, logic apply § by the of 516.371 can brought a while she was minor but was not only to suits not barred on its effective date 7, 1989, by years her five after 21st 28,1989. August 1989 Mo.Laws of See birthday. § Supp.1992.1 516.170 RSMo 1; Doe, § at 341. S.B. II. abuse in this case occurred alleges— petition, Margaret In her the effective of before dates Therefore, must deter- once in one conduct was 516.371. this Court word—that Margaret’s by barred attempts to mine whether suit was appeal, “fraudulent.” On the new longer a statute of limitation before laws invoke the statute of limitation for 516.120(5) However, fraud, § took effect. 1986. RSMo particularity states the no facts with August 28, Prior to two statutes of that the of fraud. See elements childhood sex limitation controlled claims for Voorhees, PaineWebber, ex rel. Inc. v. State by § family a member: 516.140 ual abuse 126, 128 This two-year for assault RSMo statute limitation Court thus need not address the 516.120(4) § battery, and or RSMo period for fraud. “any in five-year statute to Doe, 339; jury person.” at to
III. M.F., (Mo.App. J.D. v. S.W.2d applies The crux of a cluster of of this case is these two statutes Which case, alleged. and old. Of on the In this depends statutes both new facts statutes, nu requires Margaret pleads § committed the recent 537.046.2 a intentional plaintiff alleging abuse” to merous batteries—unlawful “childhood sexual touchings that are offensive—and harmful or sue attempts or numerous assaults—unlawful years plaintiff five the date the within injure ability to do so to threats age of three eighteen attains the or within immi creating a fear of under circumstances or discovers Yeoham, 419 peril. See Martin v. nent reasonably that the should have discovered v. Ew (Mo.App.1967); Adler injury or illness child sexual was caused ing, 347 S.W.2d abuse, whichever occurs. later Thus, August claims prior to “com apply 537.046.2 “shall to” suits Section peri subject two-year limitation were August on or 1990.” menced after § 516.140 1986. od of RSMo § Dio Doe Roman Catholic 537.04-6.3. battery as cese cause of or action A of Jefferson 1993), ruled that this Court not “when sault is deemed accrue ..., apply wrong § did not to those suits filed 537.046.3 is done but when 28,1990, capa and is resulting on or after that were barred therefrom is sustained § 516.100 RSMo other statutes limitation before ble of ascertainment....” Damage is when the fact ascertainable otherwise, statutory Supp.1992. are to noted all farther references RSMo 1. Unless Sowell, “can be or discovered made Vandenheuvel M.F., known,” plaintiff actually not at when discov J.D. v. injury wrongful on a motion ers conduct. Chemical 178. In this case—decided bare Union, Workers Basic Local No. to dismiss—there is no such record evidence. Bank, 55.27(b). not Arnold 163- See Rule should *3 (Mo. 1966); Stubbs, Jepson court. banc v. 555 have been dismissed the circuit (Mo. 1977); 312-13 banc Dixon V. (Mo. Shafton, 649 S.W.2d 438-39 banc 1983). damage When is ascertainable is an judgment of the circuit court is re- objective determination. Anderson v. versed, and the case is remanded for further Grif P.C., fin, Dysart, Taylor, Lay, Penner & opinion. proceedings consistent with this (Mo.App.1984). 860-61 COVINGTON, C.J., THOMAS, and
IV. LIMBAUGH, ROBERTSON, JJ., and concur. dismissing petition, In the cir cuit court determined that the fact of HOLSTEIN, J., in separate dissents
was ascertainable before
turned 21. opinion filed.
asserted,
an
When
affirmative defense is
PRICE, J.,
opinion
concurs in
such as a statute of
HOLSTEIN, J.
clearly
not be dismissed
it
unless
estab
lishes “on
exception”
its face and without
HOLSTEIN, Judge, dissenting.
that it is barred.
International Plastics De
respectfully
majority
I
dissent. The
cor
Co.,
velopment, Inc. v. Monsanto
433 S.W.2d rectly states that the standard for
com
(Mo.
1968);
Smith,
banc
Hall v.
running
mencement of the
of a statute of
(Mo.1962);
Devault v. Tru
damages
limitations is when the
are reason
man,
(1946).
354 Mo.
194 S.W.2d
ascertainment;
ably capable of
Chemical
pleading
This Court must “allow the
its
Workers Basic Union v. Arnold
intendment,
broadest
treat all facts
(Mo.
1966).
Bank,
damage may not have been ascertainable In this case the last act of sexual abuse is “until thereafter.” to have occurred when the dismissal, age. cites cases was 14 There is no claim that by summary judgment, mentally incompetent. decided where mat- she was Under the pleadings ques- ters outside the indicated when 14-year- became tion whether a reasonable ascertainable. See Swartz becomes Swartz, subjected old to a assault could female or known that she has been
have discovered
damaged at the time of the attack. This not ask whether a standard does female,
14-year-old later suffers from amnesia, could recall the fact
dissociative reaching upon
that she has been birthday. agree I cannot
her 21st
majority’s conclusion that does “[t]he [plaintiff] ‘sustained and
not state the date damages” these nor its
suffered’ ambiguous “it is as to when
conclusion that objectively plaintiff] could have discover- *4 damage.” known the fact of
ed or made
Here, law, 14- a reasonable as a matter of
year-old competent female should be held to damaged at the time
know she has been sexually
she is of her
does not know the extent contrast,
damages. By younger child or incompetent might not know that
one who is damaged.
she has been it does
Applying this particular plaintiff
not matter that this subjectively from dissociative
have suffered concerning question.
amnesia the event plaintiffs petition and
From the facts of the stan-
applying the
dard, her cause of action is barred limitations. For this statute of
reason, I would affirm the decision
trial court. Missouri, Respondent,
STATE JOHNSON, Appellant.
Robert JOHNSON, Movant,
Robert Missouri, Respondent.
STATE 20, 1995.
As Modified